First DePuy Pinnacle Hip Replacement Lawsuit Goes To Trial

The first of more than 6,000 DePuy Pinnacle hip replacement lawsuits to go to trial is underway in federal court in Dallas.

The plaintiff, a 58 year old woman from Montana, received two Pinnacle metal-on-metal hip replacements in 2009.  Soon afterwards, she began experiencing pain and other complications and had the hip replacements removed in 2011.  When her surgeons removed the hip replacements, they found that they were black from wear and decay caused by metallosis.  Blood tests showed that she was suffering from chromium and cobalt poisoning and that her levels were 85 times higher than normal.

Evidence DePuy Knew Of Poisoning Risk, High Failure Rate

Evidence at the trial has shown that DePuy knew of the risk of metal poisoning from the hip replacements as early as 2001.

A doctor who consulted for DePuy on the development of the Pinnacle hips informed the company in 2001 that metal ions leaching from the hip replacements into the surrounding tissue and bloodstream was a “major issue.”  In 2008 and 2010, doctors also informed DePuy of their concerns that the Pinnacle hip replacements were harming patients, with one writing in an email that the problems with the hips “is an epidemic” and that “these products are harming patients.”

Internal DePuy documents introduced into evidence at the trial also showed that the Pinnacle hips had a 5-year failure rate of 15%, three times higher than the company expected.

DePuy Used Loophole To Bypass Federal Approval Process

DePuy first began selling DePuy Pinnacle hips in 2005. DePuy used a loophole in federal law that allowed it to bypass having the Pinnacle hip replacements approved for use in patients by the Food & Drug Administration, the federal agency that oversees prescription medicines and medical devices.  When the FDA closed the loophole and announced in 2012 that all new artificial hips would require approval, DePuy stopped selling the Pinnacle hip replacements.

Free Consultation for DePuy Pinnacle Hip Replacement Lawsuits

Our attorneys continue to review cases on behalf of people who were injured by DePuy Pinnacle hip replacements as well as the DePuy ASR hip replacements.  We are based in Atlanta, Georgia and we handle hip replacement lawsuits throughout Georgia and the United States.  Call for a free consultation.

More Settlements in Stryker Hip Replacement Lawsuits

Several Stryker hip replacement lawsuits recently settled, bringing the total number of cases that have settled to 19.  So far, all of the settlements have been confidential.

While no overall settlement deal has been reached, Stryker has been settling the hip replacement lawsuits on a case-by-case basis through mediation.  Of the 21 cases that have gone to mediation, 19 have settled.  The first trials are scheduled for summer 2015 and we will likely continue to see additional cases settle through mediation before then.  After the first trials we will probably see some progress towards reaching an overall settlement with Stryker similar to the settlement reached in the DePuy ASR hip replacement cases.

Stryker Hip Replacement Recall

Stryker recalled its Rejuvenate Modular and ABG II hip replacements in June 2012 because the design of the metal-on-metal hip replacement causes tiny pieces of metal from the hip replacement to infiltrate the surrounding tissue.  This can lead to high levels of chromium and cobalt in a person’s blood stream, causing pain, damaging tissue and bone surrounding the hip replacement, chromium and cobalt poisoning, loosening of the hip replacement and even early failure of the hip replacement, requiring surgery to remove and replace it.

Number of Stryker Hip Replacement Lawsuits Continues to Rise

Since the recall, nearly 4,000 people who have received the defective hip replacements have filed lawsuits against Stryker.  More than 2,000 lawsuits have been filed in New Jersey and over 1,700 filed in federal multi-district litigation in Minnesota.  The number of lawsuits should continue to rise, as Stryker has estimated that over 20,000 people received the recalled hip replacements and studies have found the hip replacements are failing at a high rate.

Free Consultation for Stryker Hip Replacement Lawsuits

Our attorneys represents people injured by recalled Stryker hip replacements.  We are based in Atlanta, Georgia and represent people in Georgia and throughout the country.  If you or a loved one has been injured by one of the recalled Stryker hip replacements, please call for a free consultation.

Crime at Shopping Center May Lead To Negligent Security Lawsuit

A recent string of violent crimes at the Edgewood Retail District has neighbors worrying whether it’s safe to shop there.  My wife and I live nearby in Lake Claire and we’ve found ourselves looking over our shoulders when we’ve shopped there recently.  One of our neighbors asked if a crime victim could sue the owner and manager to hold them responsible for the victim’s injuries.

These cases are called negligent or inadequate security lawsuits.  Georgia law requires business and property owners to protect their customers from foreseeable crimes.  If there are crimes at a property or business, the owner has a legal responsibility to take steps to protect their patrons, such as hiring security guards, requesting additional police patrols and installing surveillance cameras and lighting.  If they fail to do so and someone is injured or killed because of a criminal attack, the crime victim has a negligent security case against the business or property owner.

Some of the recent crimes at the Edgewood Retail District include:

These crimes put the owner of the Edgewood Retail District on notice that there is a problem with crime and that it needs to fulfill its legal responsibility to take steps to protect its patrons.  Given the level of violent crime, it’s unfortunately foreseeable that more violent crimes will happen at the shopping center. Crime victims may have meritorious claims against the owners for failure to live up to their legal obligation to protect their customers.

While the property does have some security measures in place, additional steps can and should be taken to protect customers.  The Edgewood Security Patrol has requested that the owners of the shopping center take additional security measures, all of which are good ideas, and you can read that here.

Settlement For Bicycle Rider Injured by Defective Sewer Grate

Unless you’re a bicyclist, you’ve probably never thought about what direction the bars on a sewer grate face.  I sure hadn’t, until I met our client Mr. S.

Mr. S was riding his bike to work on North Avenue and didn’t notice that the bars of one of the sewer grates were parallel to the curb.  His front wheel got stuck in the grate and he flew head over handlebars, breaking his cheekbone and requiring surgery to repair.

CIMG0088

The sewer grate was defective and broke the law in two ways.  First, it broke a law that required that all sewer grates be installed with their bars perpendicular to the curb.  Second, the law requires cities and counties to build and maintain their streets so that they are safe for drivers, bicyclists and pedestrians.  Sewer grates with their bars parallel to the curb are obviously unsafe for bicyclists and break this law.

We sent the City of Atlanta a settlement demand and it rejected the demand.  We then filed a lawsuit and the City responded by denying that it owned or maintained that section of North Avenue. However, during the case we discovered evidence that the City had done maintenance work on this section of North Avenue multiple times in the years before the wreck and that when another bicycle rider was injured by this same sewer grate, that the City removed and replaced the grate! Despite this, the City still argued that it didn’t own or maintain that part of North Avenue and filed a motion to dismiss the lawsuit.  After hearing this evidence, the judge denied the City’s motion and allowed the case to go to trial.  The City then agreed to a $62,500 settlement, which we believe is fair compensation for Mr. S’s injuries.

Personal Injury Cases Involving City & County Vehicles

What happens if you’re hurt in an accident caused by a city or county vehicle?

While cities and counties in Georgia are usually protected from personal injury claims and lawsuits by a legal doctrine called sovereign immunity that says the government is immune from lawsuits, Georgia law makes an exception for accidents caused by city or county vehicles. Under Georgia law O.C.G.A. 36-92-2, cities and counties waive their sovereign immunity up to a cap that is set by state law.  The cap is:

  • $500,000 for one person that is injured or killed in a wreck;
  • A total of $700,000 if multiple people are injured or killed in a wreck;

Let’s use the City of Atlanta, where I live, as an example.  If you’re injured in a wreck caused by a City of Atlanta police officer or maintenance employee, the most you can recover from the City is $500,000.  If you have two friends in the car with you and all three of you are injured, the most any one of you could recover is $500,000, and the total recovery from the accident for all three people is capped at $700,000.  For instance, one person could recover $300,000, a second person can recover $200,000 and a third person can recover $200,000 for a total of $700,000.

The city or county can choose to raise this cap by passing a resolution or ordinance that does so or can purchase insurance in a higher amount.  A number of cities and counties in Georgia have done this and raised their cap to $1,000,000.

If you are injured in a wreck involving a city or county vehicle, you are required to send the city or county a legal notice called an “ante litem notice” before filing a lawsuit.  If you do not send the notice you lose your right to file a claim or lawsuit against the county or city.  We’ll discuss the requirements of an ante litem notice in detail in a future post, but generally you have six months to give notice to a city and 12 months to give notice to a county.

Note that this law does not apply to school boards.  So if you’re injured in a wreck caused by a school bus, different laws and procedures apply.

Breaking The 3-Foot Rule = Settlement for Injured Bicyclist

Georgia law requires that cars passing a bicyclist keep at least 3 foot between their car and the bicycle.  We recently settled a case against State Farm where a truck driver broke the 3-foot rule by striking an Athens man riding his bicycle with his truck’s mirror, causing the bicyclist to wreck and break his collarbone.  The settlement was for $50,000, which was the total amount of the driver’s State Farm insurance policy.  We were able to settle the case for the total amount even though the police incorrectly found our client at fault for the accident.

The Accident

Mr. J was riding his bicycle on 441 South at about 5:30 AM and was on his way to work.  Georgia law requires a bicyclist to ride as far to the right of the road as possible and Mr. J was doing so by riding his bicycle on the right shoulder.  A Chevy truck approached Mr. J from behind and the driver apparently did not see Mr. J until the last second.  The truck driver swerved to the left to avoid hitting Mr. J but the truck’s right-side mirror hit him, throwing him off the bicycle and breaking his collarbone. The police officer who investigated the wreck found Mr. J at fault because his bicycle allegedly did not have reflectors on it.  We secured and photographed the bike after the wreck and it clearly had the reflectors that Georgia law requires.  Unfortunately, some police officers automatically blame a bicyclist for a wreck instead of investigating what actually happened and it appears this may have been one of those situations.

The Settlement

We sent a settlement demand to State Farm and argued that the truck driver obviously broke the 3-foot rule by driving close enough to Mr. J that his right-side mirror could hit him.  We also argued that Mr. J was obeying Georgia law by riding his bicycle as far to the right as possible and by having reflectors on the front and rear of his bike, which would have made him visible to the truck as it approached from behind.  State Farm accepted our demand and agreed to pay Mr. J $50,000, the total amount allowed under its insurance policy.  The settlement will allow Mr. J to pay his medical bills and compensate him for the time he’s missed from work as a result of the wreck.

No Insurance Coverage For Bicyclist Hurt By Hit & Run Driver?

A friend and I were talking about the Atlanta bicyclist that was injured when he was struck by a hit and run driver earlier this week.  The police have announced that they believe the driver intentionally hit the bicyclist and that the driver is wanted on charges of aggravated assault with a motor vehicle.

My friend asked if the driver’s car insurance (when he’s found) will pay for the driver’s injuries and medical bills without a fight.  You’d think the answer would clearly be yes – there’s no dispute who’s at fault here and the bicyclist was badly injured and is in the hospital.

Surprisingly, this isn’t as open and shut as it seems.

Car insurance policies only cover accidents.  They don’t cover intentional or criminal acts like intentionally hitting a bicyclist with a car.  The driver’s insurance policy will likely challenge whether it has to cover the accident by claiming that this was both an intentional and criminal act of aggravated assault.  The insurance company does this in a lawsuit called a declaratory judgment that asks the judge to rule that it doesn’t have to cover the accident.

There’s a lot of similarities between the criminal trial of the driver and the declaratory judgment lawsuit filed by the insurance company. Both juries will hear all of the same testimony and evidence from the bicyclist, driver, witnesses and police.  Both juries will have to decide whether the driver committed aggravated assault and whether the driver acted intentionally when he hit the bicyclist (because intent is an element of aggravated assault).  While the jury in the criminal case has to find the driver guilty beyond a reasonable doubt, the jury in the declaratory judgment lawsuit has to find the driver committed aggravated assault and acted intentionally by a preponderance of the evidence, meaning that it’s more likely than not that the driver did so.  If the jury in the declaratory judgment lawsuit finds that the driver acted intentionally and committed a crime, the driver’s car insurance does not have to cover the wreck.

Whether or not the driver’s insurance has to cover this wreck, the bicyclist will be able to make a claim on his uninsured / underinsured motorist coverage for his injuries.  Here’s wishing him a speedy recovery.

$300,000 Settlement For Injuries From Slip & Fall On Unsafe Stairs

We recently settled  a case against MiddleOak Insurance Company for $300,000 on behalf of a Marietta woman who slipped and fell on unsafe stairs leading to her condo.  Ms. S broke her elbow in the fall, requiring two surgeries to repair, and she had over $100,000 in medical bills.

The Accident

Ms. S lived at a condo complex in Marietta, Georgia.  The stairs leading to her apartment looked like this:

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The green you see on the the tread of the staircase is astroturf that was old and very worn down and extremely slippery when wet.  One day, it was raining and Ms. S took her dog for a walk. She slipped on the astroturf and fell, breaking her right elbow.  She was taken to the hospital and diagnosed with a radial head fracture and a fracture to her ulna.  She had surgery the next day, another surgery two weeks later and months of physical therapy before she recovered.

Our Investigation

The condo association replaced the stairs a couple of months after Ms. S’s fall.  The new stairs look like this:

newstairsentrance

As you can see, the new stairs are quite different from the old stairs and much safer.  We retained an engineering expert who reviewed the pictures of the old stairs and determined that they violated local building codes in a number of ways.  The landings were uneven, each stair was a different height, there was no handrail on the left side and the astroturf was improper and never should have been put on the stairs.

We also interviewed several of Ms. S’s current and former neighbors and discovered that the stairs had been like that as long as anyone could remember, the astroturf was at least 10 years old, that there was a similar fall several years ago and that Ms. S and her neighbors had made multiple complaints and requests to repair the stairs but that the condo association had never done anything.

The Legal Challenge

Slip and fall cases like these are called premises liability lawsuits.  Georgia law has a rule called the “prior traverse” rule, which says that if a person has walked over the area that caused their fall, they’re considered to know that it is unsafe and can’t sue if they’re injured.  In most situations, the prior traverse rule makes sense, as people shouldn’t be able to sue if they know an area is unsafe and walk through it and are injured.

In a normal case, the prior traverse rule would prevent Ms. S from recovering for her injuries because she had walked up and down these stairs several times every day and knew they were unsafe and that the astroturf was slippery when wet.   However, these stairs were the only way in and out of her condo and she didn’t have a choice but to walk up and down them to get to and from her home.

In situations like this, Georgia law has what’s called the “necessity doctrine.”  The necessity doctrine is an exception to the prior traverse rule and allows a person to recover for their injuries if the area that causes their injury is the only way in and out of their home.  The law says that a person shouldn’t be a prisoner inside their own home due to unsafe conditions like these steps.  The necessity doctrine also encourages landlords to keep their properties safe and in good condition because the landlords know they can be held responsible if someone is hurt by an unsafe condition on their property.

The Settlement

Using the necessity doctrine, we filed a lawsuit against the condo complex.  We used the engineering expert and Ms. S’s current and former neighbors to prove that the stairs were unsafe, violated building codes and that the condo complex knew about the stairs and didn’t do anything to fix them.  We ultimately won a $300,000 settlement for Ms. S.

$100,000 Settlement for Broken Kneecap in Car Accident

We recently settled a case against Progressive Insurance for $100,000 on behalf of a man who broke his kneecap in a car accident, requiring surgery to repair.  The settlement was four times our client’s medical bills, which were approximately $25,000.  The settlement was also $75,000 more than Progressive’s pre-lawsuit offer of $25,000.

The Wreck

Mr. D and his friend were on their way to a camping trip and were driving on Shallowford Road in Roswell, Georgia.  They were driving around a slow curve and were at the end of a line of cars.  Traffic slowed to let a truck at the front of the line make a right turn into a driveway.  Mr. D’s friend didn’t notice that traffic was slowing down and rear-ended the car in front of him.  He was ticketed for the wreck and paid the ticket, admitting he was responsible.

The Injuries

The wreck caused Mr. D’s knee to strike the dashboard of the car, breaking it into two pieces.  He had surgery a week after the accident to fix it, which required drilling metal screws into his kneecap to reattach the broken pieces.  Here’s an x-ray of his broken kneecap before the surgery:

knee xray for blog

Mr. D had a lengthy recovery that involved months of physical therapy and then exercises for his knee to do at home.  He made a good recovery but due to the injury and surgery still has “hypersensitivity” of his knee, which means that his knee is extremely sensitive and causes him problems kneeling and bending.

The Lawsuit and Settlement

Mr. D’s friend had insurance with Progressive.  Mr. D initially tried to settle his case against Progressive by himself.  When they only offered $25,000, he called us.

Progressive refused to increase its settlement offer and we filed a lawsuit. Progressive initially denied responsibility for the wreck and even blamed other drivers for causing it.  After we deposed Mr. D’s doctor who performed the surgery and began preparing the case for trial, Progressive offered to mediate the case.  At the mediation, we were able to reach a $100,000 settlement for Mr. D.

 

Trucking Company Sanctioned For Destroying Evidence After Wreck

When a tractor-trailer causes a wreck and injures or kills someone, incriminating evidence has a way of quickly “disappearing.”  If a tractor-trailer company destroys evidence after a wreck, the judge can sanction the company for “spoliation of evidence,” which means destroying evidence. Our firm recently won a court order sanctioning a trucking company for destroying evidence after a wreck that injured our clients.

Our clients were injured in a March 2012 wreck with a tractor-trailer.   They retained our firm shortly after the wreck and we sent a letter to the tractor-trailer company and their insurance company requesting that they preserve evidence relating to the wreck.  These letters are called “spoliation letters” and let the trucking company know that if they destroy or fail to preserve the evidence requested in the letter that we will seek sanctions against them for spoliation of evidence.

The spoliation letter specifically requested that the trucking company preserve the driver’s logbooks, which show how many hours the tractor-trailer driver had been driving the day and week of the accident.  These logbooks are the best evidence of whether the driver was following or violating the safety regulations that govern how many hours tractor-trailer drivers are allowed to drive.

We filed a lawsuit against the trucking company and requested that they produce the driver’s logbooks to us.  When the trucking company did not do so, we deposed the trucking company’s safety director.  He testified that even though the trucking company received the spoliation letter and initially did preserve the logbooks, they were destroyed about six months later.  We then filed a motion for sanctions for spoliation of evidence against the trucking company and the judge granted our motion, finding that the trucking company destroyed evidence.  The judge is reserving her ruling until trial on what sanctions she will issue against the trucking company.  Trial is scheduled for this summer and we’ll keep you posted.