Alabama Supreme Court Ruling on Fictitious Defendants

                In Ex parte Nail, No. 1110742, on June 3, 2005, Dulin’s treacheostomy tube became dislodged during a bath administered by hospital personnel, causing him to suffer brain damage due to oxygen deprivation.  A month later, his wife obtained the hospital records on which the names of individuals on the “Code Team” were abbreviated, misspelled and/or illegible. 

            On May 2, 2007, a personal injury/medical negligence cause of action was brought against the hospital and 17 fictitiously named defendants.  Accompanying the complaint were discovery requests asking for the “names of all individuals who were assisting or attending to [Dulin] at the time [his] trachemostomy tube became dislodged.”  On September 10, 2007, the hospital responded with the names Alanna Nail, Paul Watson and Gennie Farragher.  On October 26, 2007, the complaint was amended to substitute these three for fictitiously named defendants.  When the trial court denied the three’s motion to dismiss on statute-of-limitations grounds, the three filed a mandamus petition.  The Supreme Court denied the petition. 

            The Supreme Court held that, under the circumstances, the Dulin’s exercised ordinary due diligence and were excused from knowing or should have known the three’s identity when the original complaint was filed.  The Supreme Court emphasized that the Dulins had filed formal discovery requests with the original complaint, as well as, the problems with reading names on the records. 

            The “value” of this opinion should be considered in light of earlier opinions that suggest that a prospective plaintiff should undertake some informal investigation to determine who should be defendants and/or instituted pre-filing formal discovery.  Additionally, this was a five-justice opinion with Woodall writing the opinion.  The full court, with more “conservative” justices, might not be so understanding.

Missouri Supreme Court Reverses Cap on Damages in Liability Lawsuits

Last month, the Missouri Supreme Court overturned a 2005 law enacted to cap liability damages. Could the pendulum finally be swinging the other way? In almost every jurisdiction in our country, courts and legislatures have been cutting back the rights of injured victims and the peoples' right to trial by jury for the last 15 years. See the link below for an article on the ruling:

http://www.ktvu.com/news/ap/crime/mo-court-overturns-2005-cap-on-liability-lawsuits/nP7bG/

DePuy Settles Three Nevada Cases for Reported $600,000

It is being reported that Johnson & Johnson, which faces about 8,000 lawsuits over hip implants it recalled in 2010, agreed to pay approximately $600,000 to resolve three cases in the first settlements of the litigation. This amount seems to be on the low end of what the corporation should have expected to pay to settle the claims. In fact so low, that the  plaintiffs are now claiming that some party breached the confidentiality agreement by leaking a misleadingly low figure, and have asked the court to set aside the confidentialty agreement so they can set the record straight. The hearing on that issue is in about a month.

The three Nevada plaintiffs had filed jointly, claiming similar issues that resulted in obligatory revision surgery. The plaintiffs, Annelise Rundle, Martha Bender and Katherine Guy were set for trial Dec. 3.

Rundle, 74, Bender, 69, and Guy, 60, all had ASR hip replacements done by the same surgeon during the past six years, court filings in Las Vegas show. All three later had the artificial hips removed after experiencing pain and other side effects, according to the filings. Tests on Rundle showed she had health problems associated with metal filings from her hip, her lawyers said in the filings. In Bender’s case, doctors discovered evidence of bone damage from the device, lawyers said.

The complaint plead failure to warn, negligence, deceptive trade practices, and other allegations. Had the trio's case gone to court, it would have been the first ASR lawsuit tried in court. The consolidated Nevada cases are Rundle v. DePuy Orthopaedics Inc., A-11-636272, Clark County District Court (Las Vegas).

J&J’s DePuy unit recalled its 93,000 ASR hips worldwide in 2010, including 37,000 in the U.S., because studies conducted showed more than 12 percent of the devices failed within five years. Lawsuits in federal and state courts describe patients in pain and immobilized by joint dislocations, infections and bone fractures. Plaintiffs are also claiming metal debris from the hips, made from a cobalt and chromium alloy, causes necrosis of the soft tissue around the joint and an increase of metal ions in the bloodstream to harmful levels.

J&J faces more than 8,000 cases alleging the ASR hips are defective, according to court filings. U.S. District Judge David Katz in Toledo, Ohio, is overseeing about 6,000 federal suits that have been consolidated in the ASR MDL. The federal case is In re DePuy Orthopedics Inc., ASR Hip Implant Products Liability Litigation, 10-MD-2197, U.S. District Court, Northern District of Ohio (Toledo). The corporation is also defending itself in more than 2,000 cases filed in courts in California, Maryland, Nevada and other states.

The company said in January that it spent about $800 million on the recall during the past two years. It wouldn’t estimate its product-liability costs associated with all of the lawsuits.

J&J faces a state-court trial in Prince George’s County, Maryland, in January involving three hip-replacement recipients. Those cases would now be the first to go to trial if they are not resolved prior to trial. The MDL trial of claims over the devices is expected in March or April of 2013. Some estimate it may cost the products manufacturer as much as $2 billion to resolve all litigation over DePuy’s ASR hips.

J&J’s stock price rose 8 cents to $67.78 in New York Stock Exchange composite trading. The company’s 4.95 percent bonds, due to mature in May 2033, fell $1.23, or 1 percent, to $121 after news of the hip settlements was announced.

Alabama Opinion on Paying Fee to Personal Representative in a Wrongful Death Case

In Rodgers v. McElroy, No. 2110364 (Ala. Civ. App. Aug. 10, 2012), White was killed in an accident caused by a drunk driver.  McElroy, the Jefferson County administrator, was appointed White’s personal representative.  White’s estate had no assets.  McElroy hired Stamps to pursue a wrongful-death claim, which included seeking UMI coverage.  There was a recovery of UMI benefits and liability insurance.  McElroy requested and was awarded a portion of the wrongful-death recovery as a fee for serving as the personal representative.  One of the statutory heirs appealed, arguing that McElroy was not entitled to a fee.

The majority of judges found that McElroy was entitled to a fee.  The majority emphasized that McElroy “performed” a service for the heirs and placed reliance on Sec. 43-2-848(b) as allowing for the awarding of such a fee for having performed “extraordinary services … for the estate.”

Judge Moore wrote a “strong” dissent that, among other things, noted that McElroy really did not do anything other than engage the services of an attorney.

Rodgers failed to specifically challenge the amount given McElroy (9%).

This opinion opens the door when there is a no-asset estate for compensating a personal representative from a wrongful-death recovery, but the Supreme Court could shut the door by adopting Judge Moore’s dissent.

Jury Awards $24.2 Million in Jefferson Parish, LA Med Mal Case

A Jefferson Parish, Louisiana jury returned a $24.2 Million verdict in a medical malpractice case. Nola.com reported on the story.

The facts of the case are heartbreaking as it involved irreversible brain damage to a toddler. The cause of the injury was from an infusion pump, manufactured by Abbott Laboratories and Hospira Inc., which spun off from Abbott in 2004. The Plaintiffs claimed the pump failed and delivered epinephrine, an adrenalin drug, into the child's body, triggering cardiac arrest. Ochsner Hospital was also named as a Defendant.

The story can be found on the link below:

http://www.nola.com/crime/index.ssf/2012/08/jefferson_parish_jury_awards_2.html#incart_river_default

$5.5 Million Verdict in Transvaginal Mesh Case

In the first transvaginal mesh lawsuit to go to trial, a jury in California ruled that transvaginal mesh implants manufacturer C.R. Bard was responsible for a patient’s injuries (Scott v. Kannappan, S-1500-CV-266034-WDE, Superior Court for Kern County, California, Bakersfield). In the jury trial, the Plaintiff, Christine Scott, was awarded $5 million for her injuries and $500,000 was awarded to her husband for loss of consortium. CR Bard was found 60% liable, while Scott’s doctor, Tillakarasi Kannappan, was found 40% liable. In Alabama, the percentage of fault would not have made a difference because of joint and several liability.

Scott had two Avaulta Plus transvaginal mesh devices implanted in her to treat urinary incontinence. She contended that the Bard Avaulta Plus vaginal mesh implant was defective and the manufacturer failed to warn about its safety risks. The Defendants included the manufacturer of the device CR Bard and her physician.

The transvaginal mesh caused complications that left her entirely incontinent, with chronic pain and the inability to have sex. She underwent nine revision surgeries and eight other procedures to try to get both devices removed that doctors said the devices could not be safely taken out of her body. Court documents report that the device has cut Scott’s colon and tissue, which continues to grow through the mesh holes. She will likely experience chronic pain for life and her runner lifestyle has been affected.

Although Scott is the first transvaginal mesh victim to get her day in court, hundreds of other women have filed their defective medical device lawsuits because of injuries and health complications they have suffered after getting a transvaginal mesh implant. Mesh product manufacturers named as defendants have included Boston Scientific Corp. (BSX), Murray Hill, Johnson & Johnson (JNJ), Endo Pharmaceutical Holdings Inc., and other companies. 

This verdict comes more than a month after Johnson& Johnson Ethicon discontinued four lines of vaginal mesh devices. Many filed cases have been streamlined into multiple MDL’s and  include C.R. Bard (MDL 2187), American Medical Systems (MDL 2325), Johnson & Johnson’s Ethicon (MDL 2327 ) and Boston Scientific (MDL 2326).

The vaginal mesh implant devices have been popular for treating Stress Urinary Incontinence and Pelvic Organ Prolapse. However, in the last few years, there have been reports of women suffering serious complications, including severe bleeding, pain during intercourse, infection, and erosion of the device. Between just 2005 and 2007 alone, the US Food and Drug Administration said it received over 1000 report of adverse events. Also, Scott is not the only woman to have undergone multiple procedures to try removing the device.

Last July, the FDA updated its Public Health Notification on transvaginal mesh products. While the original one from 2008 said that using transvaginal mesh in medical procedures could potentially cause a patient harm, the 2011 updated said that it is not unusual for someone undergoing a procedure involving this surgical device to suffer “serious complications.” The FDA also said that getting a transvaginal mesh does not give a patient a higher likelihood of a successful outcome than if she had undergone traditional surgery to treat the same condition.

C.R. Bard continued to keep its Avaulta products-- including the Avaulta Biosynthetic, Avaulta Plus and Avaulta Solo devices—on the market until they pulled it from the shelves in the US at the beginning of July 2012. The products were pulled only when the FDA asked for more clinical trials to determine their safety. Incredibly, Bard is still selling its Avaulta line in other countries.

Blue Cross/Blue Shield Alabama Anti-Trust Litigation in the News

The Birmingham News reported on the current state of the Blue Cross/Blue Shield of Alabama Anti-Trust Litigation this week, which was posted on al.com. Chris Hellums of our firm, Pittman, Dutton & Hellums, filed one of the first suits in Alabama. 

Some of the more interesting statistics and figures reported on Blue Cross/Blue Shield of Alabama include:

      -total assets of $2.4 billion at the end of 2011

      -a market share of 90 percent

      -Blue Cross' rates aren't subject to automatic review by the Insurance Department

      -net income of $257 million in 2011

See the link below for the full article:

http://blog.al.com/businessnews/2012/08/blue-cross_blue_shields_28_bil.html