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.