BCBS Anti-Trust Case in the News

The Alabama BlueCross BlueShield anti-trust case has received some press in the local news this week. The case has been consolidated into an MDL in front of Judge Proctor, in Birmingham, Alabama. Although the case has garnered plenty of local interest, it has ramifications nationwide. The story is mostly about the provider-side of the lawsuit. There is a separate, although closely related, subscriber track. Pittman, Dutton & Hellums is representing plaintiffs on the subscriber side. 

To read the story, click here.

This is not the only bad press BlueCross BlueShield has received lately from the local media. The non-profit was recently ridiculed for ramming a bill through the state legislature which made executive pay confidential. In the past, the mega-insurer had to disclose the salaries of its executives. Not anymore.

To read that story, click here.

UPDATE: ZIMMER WINS FIRST NEXGEN CASE

The Zimmer defendants have won the first bellwether trial in the NexGen knee MDL. Late last Friday, an Illinois jury reached a defense verdict in favor of Zimmer Inc.

The trial lasted three-and-a-half weeks and began on October 13th in the U.S. District Court for the Northern District of Illinois. Hon. Rebecca R. Pallmeyer presided over the trial. 

The first trial was the plaintiff’s side's first pick from the pool of filed cases in the MDL. The next trial, scheduled for early next year, will be picked by the defendant’s lawyers.  

Jury Is Still Out in First Bellwether Zimmer Nexgen Trial

The first bellwether trial in the Zimmer NexGen MDL is now in the hands of the jury. The Plaintiff claims the company negligently designed a series of NexGen knee replacements and failed to properly warn surgeons of the possibility that the devices could come loose from the tibia, or shinbone. Zimmer’s main defense is surgeon error.

There are roughly 1,000 cases pending in the MDL. The first trial was set to begin in January of this year, but for numerous reasons, the first did not begin trial until October. The next bellwether case will be one of Zimmer’s choosing, with four cases in total set to try.

The case is Batty et al. v. Zimmer Inc. et al., case number 1:12-cv-06279, in the U.S. District Court for the Northern District of Illinois. The MDL is In Re: Zimmer Nexgen Knee Implant Products Liability Litigation, case no.1:11-cv-05468 in the same court.

Second IVC Filter MDL Created

An inferior vena cava filter, or IVC filter, is a tiny device implanted by doctors to “catch” migrating blood clots that have broken away from an arterial wall. The device is often put in as a prophylactic measure. In so doing, the IVC filter prevents a blood clot from forming, preventing stroke and other life-threatening events.

The IVC filter is a wire device that is often described as resembling a spider. Unfortunately, any one of the metal extremities or shards on the device can break off and be carried away by the blood stream, finding its way to the heart or lungs. The likelihood of splintering increases the longer the device remains in the body. The devices seem to work for their intended purpose, but should not be left in the body permanently, and should be removed once the danger of a serious blood clot has passed.

The main manufacturers named as defendants in various lawsuits are C.R. Bard and Cook Group, Inc., or Cook Medical.

It is alleged that as early as 2003, Bard’s own research and studies showed that the IVC filters posed an unreasonable danger to patients from splintering. The company did not tell the FDA about their findings, or warn patients or doctors, and continued to sell and market the Recovery IVC filter until it could create a suitable replacement. Bard only removed the Recovery IVC from the market when it had a new filter, the G2, in 2005. Since 2005, the FDA has received 921 device adverse event reports involving IVC filters.

In May of last year, the FDA issued a safety bulletin advocating that the ideal window for device retrieval is from 29 to 54 days after implantation. That said, the FDA was on record, as early as 2010, indicating that an IVC filter should be removed as soon as the danger of a pulmonary embolism had passed.

In October 2014, the U.S. Judicial Panel on Multidistrict Litigation consolidated 27 lawsuits against Cook Medical from 11 districts into Multidistrict Litigation No. 2570 in the Southern District of Indiana before Judge Richard L. Young. This MDL is comprised mostly of lawsuits over the Günther Tulip and Celect filters.

The first lawsuits filed against C.R. Bard were filed in California and Pennsylvania state courts in 2012. On August 18, 2015, the JPML centralized 22 lawsuits involving C.R. Bard IVC filters into Multi-District Litigation No. 2641 in Arizona under U.S. District Judge David G. Campbell. Those lawsuits involve the Bard Recovery, G2, and G2 Express retrievable filters.

The use of an IVC filter may cause the following problems:

IVC Filter migration

IVC Filter fracture

IVC Filter perforation

Tilting of the IVC Filter

The inability to retrieve the IVC Filter

Pulmonary embolism

Compromised respiration

Stroke

Death

Pittman, Dutton & Hellums, P.C. is currently investigating IVC filter cases. If you or someone you know received an IVC filter and has been injured, please contact Booth Samuels at (866) 515-8880 or by email at booths@pittmandutton.com

Zimmer Recalls Persona Knee Replacement Components

On March 12, 2015, Zimmer issued a voluntary recall of the Persona Trabecular Metal Tibial Plate following an increase in complaints of loosening and radiolucent lines (x-ray evidence of separation of the metal plate from the bone). The loosening of the device can result in severe pain and the need for revision surgery.

According to the FDA, this recall affects 11,658 of these knee components worldwide. Zimmer distributed the recalled Persona Trabecular Metal Tibial plates in at least 25 states and at 13 major Veterans' Administration medical centers throughout the U.S. from Nov. 29, 2012 until Jan. 23, 2015. This recall does not involve the femoral component or cemented tibial plates.

Zimmer marketed the Persona Knee as the “most clinically successful knee replacement more personalized than ever.” Yet, patients who were implanted with the Persona Knee have experienced serious problems or needed revision surgery.

Complications can include:

•       Loosening of the implant

•       Pain

•       Limited mobility

•       Numbness or stiffness in the leg

•       Appearance of radiolucent lines on x-ray

•       Early implant failure of the knee implant

•       Need for revision surgery

If you or someone you know received the Zimmer Persona Trabecular Metal Tibial Plate and have experienced complications, please call Booth Samuels at (866) 515-8880 or by email at booths@pittmandutton.com

Medical Identity Theft

We all have read about the massive data breaches in the news over the last few years. The Target breach, the Mapco breach, and the Anthem breach are but a few. The thought of some far-away computer hacker in a basement in Russia, or the far-East, is nothing foreign to us these days. Cyber-security systems, no matter how seemingly airtight, are vulnerable. We are all at risk. It seems every week, there is a story of another large company that was hacked and our personal information was stolen.

But how is your personal information used? A lot of times, your information is sold on the internet in bulk around the world (see my previous blog post). The purchasers of stolen information use credit card numbers to buy goods or pay for services. Sometimes they file false tax returns using your information to steal your rebate or claim one of your dependents on their return.

However, an alarming new trend is occurring in the world of identity theft and it is medical identity theft. Thieves use your personal information to receive treatment at hospitals and clinics, get prescriptions, or buy medical equipment. Usually, the health care provider is nowhere in your vicinity or provides treatment for a condition you do not have.

Victims sometimes only find out when they get a bill or a call from a debt collector. They can wind up with the thief’s health data and history in their own medical charts. A patient’s record may show she has diabetes when she does not, say, or list a different blood type—errors that can lead to dangerous diagnoses or treatments.

Adding insult to injury, a victim often is not allowed to fully examine his own records because medical-privacy laws such as HIPPA protect the thief’s health data. All the while, hospitals sometimes continue to hound victims for payments they did not incur.

To make the situation more alarming, medical identity theft is growing. According to a recently published survey, medical identity theft affected 2.3 million adult patients in 2014 versus 1.4 million in 2009. Another report published in February estimated that computer-data breaches of personal health information affected more than 40 million patients from 2009 through 2014.

Such identity theft has led about 40 companies, including Blue Cross Blue Shield Association and Aetna Inc., to form the Medical Identity Fraud Alliance. Some hospitals have turned to biometric screening to confirm patient identities. Also, unlike in financial identity theft, health identity-theft victims have a much more difficult time clearing the illegal bills because there is no health-care equivalent of the Fair Credit Reporting Act or the Fair Debt Collection Practices Act, which limits consumers’ monetary losses if someone uses their credit information.

NPR Reports On Vaccine Court

The Office of Special Masters of the United States Court of Federal Claims, or as it is commonly referred to as the “Vaccine Court”, has been in the news recently. This little-known Court handles all vaccine-related injury claims in the United States. Created in 1986, the Court is tasked with finding if an injury is related to a vaccine, and then determining the amount of compensation.

The process was intended to be more non-adversarial than our traditional civil courts, but in practice, it mirrors our civil courts more than it should. A petitioner’s burden of proof is a ‘preponderance of the evidence’ standard- meaning it is more likely than not that the vaccine caused the claimed injury. Getting a medical professional to testify to this is often difficult.

NPR this month published two pieces on the Court and the hardships faced for those who are not afforded justice. Receiving just compensation for injuries is a steep mountain to climb for those who are injured.

To read the articles, click here and here.

Booth Samuels is admitted to practice in the Federal Claims Court where he handles vaccine-related injury cases. If you or a loved one were injured by a vaccine, please contact him for a case evaluation toll-free at 1-866-515-8880, or by email at booths@pittmandutton.com. 

Claims Against Taishan Continuing

This week, Judge Fallon heard arguments for and against certifying a class for damages against one of the Chinese manufacturers of corrosive drywall. The manufacturer is Taishan, a Chinese company believed to be mostly owned by the Chinese government. Recovering from Chinese companies has been extremely difficult for American consumers.

Litigation has been ongoing over the last six years, and Taishan has for the most part been an absentee party. Unlike homes with Knauf-manufactured drywall, where Knauf paid to remediate, homes containing Taishan drywall have been unremediated-unless the homeowner paid out of pocket for the repairs.

For more on the story, click here.

Power Morcellators: Insurance Companies No Longer Covering the Procedures

Aetna, the nation's third-largest health insurer, announced that as of May 15, it will curb coverage of laparoscopic power morcellation in hysterectomies or for removing uterine fibroids "because the safety and efficacy of this approach has not been demonstrated." The procedure involves using a tube shaped tool to remove uterine fibroids or the entire uterus in less-invasive surgeries than standard abdominal procedures. Surgeons use the tools to grind and shred uterine tissue so it can be removed through a small incision in the abdomen.

Aetna will make limited exceptions for the procedure including for pre-menopausal women who want to maintain their fertility and for those that other treatment would be a life threatening risk.

The danger is that occasionally, a cancerous growth is undetected and seemingly benign when it is removed. Slicing up the growth into small pieces could disperse cancerous flesh in a woman's body, decreasing the likelihood a woman could survive the cancer in the long run.

In November of 2014, the FDA issued a warning against using laparoscopic power morcellators in removing a uterus or removal of fibroids. In its warning, the FDA estimated one in 350 women undergoing hysterectomy or myomectomy for the treatment of fibroids has "unsuspected uterine sarcoma," a type of cancer that appears to be a benign growth.

Some regional health insurers have stopped covering hysterectomies and myomectomies by power morcellation altogether. For example, Blue Cross Blue Shield in Massachusetts stopped covering the procedures on September 1, 2014.

A number of lawsuits have been filed throughout the country on behalf of women who claim to have been injured by this procedure. An MDL has not been set up yet, but depending on if the number of filed claims grows, one could be on the horizon. A number of different pharmaceutical companies who manufacture morcellators including Johnson & Johnson, Richard Wolf Medical Instruments, and Gyrus ACMI have been named as defendants. 

URGENT: ACTOS SETTLEMENT ANNOUNCED WITH DEADLINE TO PARTICIPATE THIS FRIDAY

Takeda announced today that it agreed to pay $2.37 billion to resolve lawsuits accusing the company of hiding its Actos diabetes medicine’s cancer risks.

The agreement states that the deal will go through if 95% of those with claims against Asia’s largest drug maker agree to accept the settlement. If the settlement’s participation rate climbs to 97%, Takeda will add $300 million to the settlement, bringing it to a total of $2.4 billion.

It is estimated that the average settlement per claim is $296,000. The payment may be reduced depending on a patient’s age, smoking history and exposure to toxins, which is similar to other mass tort settlements including the DePuy ASR agreement.

Last year a jury found against Takeda and Eli Lilly & Co. in the amount of $9 billion in damages to a shopkeeper who blamed Actos for causing his bladder cancer. That award was later reduced to $36.8 million by a judge.

If you have not filed a lawsuit against Actos and you qualify under the terms of the settlement agreement, you can still participate, but time is running out. If you have retained an attorney by this Friday, May 1, 2015, you can still participate in the proposed settlement. Your attorney will have to file a declaration before July 13, 2015, stating they were retained prior to May 1, 2015.

If you or a loved one developed bladder cancer as a result of the prescription drug Actos, contact me immediately to protect your rights. Contact Booth Samuels at 1-866-515-8880 or by email at booths@pittmandutton.com for a free consultation. 

Target Proposes Settlement With MasterCard

Target has agreed to pay MasterCard-issuing banks and credit unions as much as $19 million to reimburse for losses related to the Holliday season 2013 hack that resulted in up to 40 million accounts being breached. For more information on data breach, see my previous blog postings.

The settlement covers the costs of reissuing credit and debit cards after the breach, as well as fraudulent charges on those cards. In order for the agreement to proceed, at least 90% of eligible MasterCard issuers must acquiesce to the settlement. The deadline to accept the offer is May 20^th.

Target disclosed in a recent financial filing that it has incurred $252 million of breach-related expenses.

Last month, Target also settled a class-action lawsuit with individual cardholders for $10 million.

Target’s high-profile breach pushed banks, retailers and card companies to increase security by speeding the adoption of microchips in U.S. credit and debit cards. Some argue chip cards are safer, because unlike magnetic strip cards that transfer a credit card number when they are swiped at a point-of-sale terminal, chip cards use a one-time code that moves between the chip and the retailer’s register. The result is a transfer of data that is useless to anyone except the parties involved. Chip cards are also believed to be nearly impossible to copy.

Second Proposed Settlement in NCAA Concussion Lawsuit Announced

Earlier this month, a new proposed settlement agreement was filed with the Court in the NCAA Concussion MDL. In December, District Court Judge John Z. Lee rejected a preliminary approval of the lawsuit, saying it was unclear in some sections and the dollar amount proposed was potentially insufficient. Lee then ordered both sides to attempt to reach a different settlement.

The original lawsuit called for the NCAA to create a $70 million fund to test current and former athletes in contact and non-contact sports for trauma caused by brain injuries. It also called for the NCAA to strengthen its return-to-play rules after an athlete suffers a concussion. Judge Lee had noted that the first settlement did not allow the NCAA a means of enforcing schools to adopt rigorous return-to-play concussion policies.

The first lawsuit was filed in 2011 by four plaintiffs, including former safety Eastern Illinois Adrian Arrington, who said that he suffered five concussions during his career, with some so severe that he couldn’t recognize his parents after the head trauma. Since then, a total of 10 lawsuits have been filed against the NCAA, which were consolidated into an MDL in Chicago.

However, one attorney has objected to the proposed agreement. His argument includes that the proposed settlement is not just-compensation to athletes.

Reports have indicated that the amount of the settlement is close to the original proposed one.

In both settlement agreements, no money is allocated to athletes for damages. Instead the money would go towards testing and monitoring of former NCAA athletes. Approximately 4.4 million athletes could apply for the NCAA-funded testing. 

Taishan Indicates It Will Pay

Earlier this month at the monthly status conference for the Chinese Drywall MDL in New Orleans, representatives of Taishan Gypsum Company indicated to the Court that they would pay a judgment against the Chinese entity. The judgment dates to 2010, when the Court ruled that Taishan was liable for $2.6 million to fix the homes of the seven Virginia families. The seven families were plaintiffs in a bellwether case.

Taishan has never paid the judgment. While another Chinese drywall manufacturer owned by Knauf paid to remediate homes, Taishan filed multiple appeals and challenged the jurisdiction of the MDL Court. After the Fifth Circuit denied all of Taishan’s appeals, the company dismissed its lawyers and stopped showing up in court.

Last summer, U.S. District Judge Eldon E. Fallon, the presiding MDL judge, found Taishan in civil and criminal contempt of court, and barred the company, and its parent corporations, from doing business in the United States.

At the monthly status conference, when Judge Fallon was expected to hand down a judgment for the entire class of Taishan homeowners (potentially more than $1 billion in damages estimated by the amount paid out by Knauf) the company suddenly reappeared, along with a new set of lawyers from Alston & Bird.

It is estimated that about 4,000 houses nationwide were built with Taishan’s toxic drywall. The board emitts sulfur gases that corrode metal wiring and pipes, short-circuit electronics and can lead to numerous respiratory ailments.

Could this about-face signal Taishan wants to come to the table and fix the thousands of homes affected by its product? Could this be the beginning of the end for victims of Taishan drywall? I hope so, but it is too early to tell.

$10M Settlement Announcement for Target Data Breach Case

Target and lawyers for plaintiffs whose clients’ personal information was stolen in a 2013 major data breach have agreed on a $10 million settlement.

A class-action suit was pending in United States District Court in Minneapolis, where Target is headquartered. Both sides asked the court to approve Target's offer, which the two sides agreed to last week. Target said as many as 40 million credit and debit card accounts may have been affected by the breach, which occurred between November 27 and December 15, 2013, at the height of the holiday shopping season. See my previous blog posts on the story and lawsuit.

The proposed settlement would cap any award at $10,000 per claimant. It would also include Target appointing a chief information security officer to oversee information security and to train employees in securing costumers' personally identifiable information. Judge Paul Magnuson has reportedly signed off on the preliminary settlement agreement.

In a recent filing with the Securities and Exchange Commission, the company estimated it has incurred $252 million of cumulative data breach-related expenses as of Jan. 1, 2015. This was partially offset by $90 million of expected insurance recoveries.

Zimmer Defendants Picks For Bellwhether Trial

The Zimmer NexGen Knee MDL seems to finally be making some headway. Just yesterday, the defendants filed with the Court their choices for bellwhether trials. Because of disagreements between the parties, the earlier choices were disregarded. The list of choices are below:

           

            Gloria Ebarb v. Zimmer, Inc., et al., Case No. 1:13-cv-02679

            Original District: Western District of Arkansas

            Plaintiff’s Counsel: Sean T. Keith – Keith, Miller, Butler, Schneider &

            Pawlik, PLLC; Randi Kassan – Sanders Viener Grossman, LLP

            Mark Stephen Dobrzynski & Laura Left Dobrzynski, by Trustee Richard M.

            Fogel v. Zimmer, Inc., et al., Case No. 1:11-cv-07847

            Original District: Northern District of Illinois

            Plaintiff’s Counsel: Don K. Ledgard – Capretz & Associates;

            Paul J. Fina – Fina & Hunter

            Richard Lawrence v. Zimmer, Inc., et al., Case No. 1:12-cv-05201

            Original District: District of Minnesota

            Plaintiff’s Counsel: Stacy K. Hauer and Timothy Becker – Johnson

            Becker, PLLC; Randi Kassan – Sanders Viener Grossman, LLP

These plaintiffs have until the end of the month to inform the Court if they will proceed to trial. It is not clear the exact type of implant, injuries, and other case specific information involved in the defendants’ choices. One would hope that they are representative of the remaining filed cases in the MDL in order to help the parties evaluate their respective positions.