Negligence Claims

Chinese Drywall Still a Major Issue Throughout Gulf Coast

Published on: February 6, 2011 | By Berniard Law Firm

For thousands of homeowners, an unwelcome companion lives with them every day, without their consent and sometimes without their knowledge. This unwelcome housemate is known as Chinese drywall. This dangerous defective material was utilized in a multitude of homes between 2001 to 2007, when it was imported from China. The drywall has created an unhealthy and dangerous atmosphere for homeowners, who have to deal with not only symptoms of failing health, but also their actual possessions showing evidence of exposure to Chinese drywall. One couple in particular describe the chain of events that led them to the discovery that they were living in hazardous circumstances as a result of the Chinese drywall being used in the construction of their dream home.

Chinese drywall is not the type of danger that is instantly apparent; rather, it is hidden in the home, being that it is sheet rock which is later covered and painted over. However, this hidden hazard releases toxic fumes into the air which causes health effects as well as deterioration in objects exposed to such toxins. According to the U.S. Consumer Product Safety Commission, “the drywall releases hydrogen sulfide and possibly other gases causing corrosion of wiring and appliance and possible health problems.” A couple who detail their experience with the defective, hazardous material, stated that their first inclination that something was seriously wrong was when they had to replace their air conditioning compressor and coils twice, within a three month time span. Upon speaking with their friends and neighbors, they discovered that numerous homeowners in the area had to replace their air conditioning compressor and coils often as well, which is not normal for such equipment. The trauma continued when the couple described smelling rotten egg in their home on a daily basis, to such an extent that when they left their home, co-workers and friends would mention that the couple themselves smelled like rotten egg. As further indication of the danger that lurked in their home, the silver jewelry and dishware turned black after sitting out for a mere week and half. Pretty soon, friends, relatives, and neighbors stopped coming to their home, the smell was too much to handle and the couple was at a loss of what to do. Hiring a home inspector to come help them discover the root of their problems, the inspector discovered their house was built with Chinese drywall. Scared and unsure of what their options were, the couple turned to legal guidance and support for answers.

Lawsuits have been filed against the Chinese drywall manufacturer, Knauf Drywall, and the distributor, Interior/Exterior Building Supply. In fact, to date, over 5,000 cases have been filed in a multi-district litigation in Louisiana under federal Judge Eldon Fallon. These lawsuits were pressed by those looking to recover the money it would cost to replace their drywall with a safer version. Since this process involves major construction, the costs are high and these people rightfully felt like they should not have to pay for unknowingly being exposed to contaminants by the manufacturer.

The health risks are extremely important to understand and take into consideration. According to Dr. Patricia Williams, a University of New Orleans toxicologists, “highly toxic compounds have been found in Chinese drywall and prolonged exposure to these compounds can cause serious problems. Strontium sulfide may be dangerous to developing children; affecting bone growth. Chronic exposure to these gases may affect the central nervous system (including visual and sensory changes), cardiovascular system, eyes, kidney, liver and skin.” These risk cannot be ignored, thus, seeking legal advice to understand all of the issues involved is strongly advised.

Chinese drywall is a hazardous material that thousands of homeowners have had to live with for years. Throughout this time period they were constantly barraged with toxic fumes which affected their health, lives, and enjoyment of their homes. Legally, homeowners have an action against the manufacturer and distributor of such a defective product and should seek legal advice as soon as possible. Homeowners need to understand how Chinese drywall impacts their health and environment. Monthly status calls are available for homeowners to listen to, that detail settlement discussions as well as liability issues. Homeowners are encouraged to listen in and can call the conference call number at: 1800.260.0702, with the access code 183730. The next scheduled status meeting will be January 20, 2011. Homeowners are strongly advised to seek legal support to protect their rights; if you live in a home with Chinese drywall, contact an attorney immediately.

Lead Attorney Participates in Status Conference for ASR DePuy Hip Recall Litigation

Published on: February 4, 2011 | By Berniard Law Firm

Lead Attorney Jeffrey Berniard of the Berniard Law Firm participated in a recent status conference called by U.S. District Judge David A. Katz of Ohio. The conference was a coordination hearing, and it was the first of several that will be held to determine the strategic direction of DePuy litigation. At the conference, Judge Katz listened to several attorneys argue for a position on the Plaintiffs Steering Committee. Berniard previously submitted his application for a position on the Plaintiff’s Steering Committee, and even if he is not picked as a member, he looks forward to being an active participant in the litigation on the Plaintiffs’ behalf. Judge Katz will consider all applicants, and he will announce the committee selection at a later time.

Jeffrey Berniad is pleased that Judge Katz was ultimately chosen by the Judicial Panel on Multi-District Litigation to preside over the DePuy pretrial matters. Because the Berniard Law Firm represents clients nationwide, Jeffrey Berniard is accustomed to practicing in front of judges located throughout the country. Indeed, Berniard has indicated that Judge Katz is a remarkable judge with a great reputation and that he is happy to be working with him.

As Judge Katz considers the various DePuy matters pending in front of him, including applications to the Steering Committee, Berniard continues to work diligently to achieve justice for those clients who have been harmed by defective DePuy hip implants. In August 2010, DePuy announced a nationwide recall of hundreds of thousands of its ASR hip implant devices due to abnormally high failure rates and structural breakdowns. Hundreds of thousands of patients who received the implants have experienced serious injuries, such as pain and suffering, as a result. Since day one of the recall, Berniard, along with other attorneys, have been seeking recovery on their behalf through the filing of lawsuits with various district courts on a near daily basis.

Speculation Surrounding DePuy Kickbacks to Doctors Who Recommended Recalled Device

Published on: January 31, 2011 | By Berniard Law Firm

The New Haven Independent reported in December 2010 that DePuy, the company responsible for manufacturing thousands of defective hip implants, spent millions of dollars in attempts to woo doctors toward the use of its products on patients. DePuy, a division of Johnson & Johnson, recalled hundreds of thousands of the hip implant devices it had manufactured after a serious design defect was discovered in August 2010. Just as many patients are currently faced with potential complications or the prospect of revision surgery. Some question whether patients could have been saved from these consequences had doctors not been prompted, via kickbacks, to surgically implant DePuy devices into hip replacement patients.

DePuy discloses payments to doctors on its website, but it categorizes such pay as “product royalty payments, “compensation for research,” “meals,” “airfare,” and other expenses. DePuy paid nearly $50 million to surgeons in 2009, with some physicians receiving as much as $1 million from the company. Even if doctors in good faith believe that payments from DePuy do not compromise their medical judgment, health consumer advocates disagree. “…[T]he reality is, it’s human beings,” Jean Rexford, executive director of the Connecticut Center for Patient Safety, said. “We are influenced. If somebody does something nice for me, I’m nicer to them than someone who hasn’t done something nice to me.”

Another expert, Gregory E. Demske, an assistant inspector general, testified before the Senate that “…[I]n an environment where physicians routinely receive substantial compensation from medical device companies through stock options, royalty agreements, consulting agreements, research grants and fellowships, evidence suggests that there is a significant risk that such payments will improperly influence medical decision-making.”

Depuy Litigation Hip Replacement Surgery Claimant Interview Part 3

Published on: January 25, 2011 | By Berniard Law Firm

In parts 1 and 2 of a three-part interview with client Eugene O’Neal (name changed to protect attorney-client privilege), Eugene communicated to readers the menacing effects a failed DePuy ASR hip implant can impose on a person. Not only is the required revision surgery physically taxing, but it generates emotional uncertainty and psychological anxiety as well. For Eugene and the thousands like him, the fallout from the nationwide recall of DePuy ASR hip implants carries with it very real, very human consequences.

When Eugene realized his defective hip had been recalled, he turned to the Berniard Law Firm for guidance. Immediately, attorney Jeffrey Berniard and his staff gave Eugene vital legal advice and connected him to medical professionals who could explain in plain language how the defective hip implants were adversely affecting his body and causing pain.

As previously reported by this blog, Mr. Berniard is using his legal expertise to assist those like Eugene everyday. As he has for years before, Berniard is filing lawsuits for those affected by the inappropriate actions of a large company; in this case, our firm has filed on behalf of patients who have suffered before the recall. Lead attorney Jeffrey Berniard has sought to centralize DePuy litigation to Lousiana and, although his motion was not granted, he is very happy with the selection of the Northern District of Ohio as the transferee forum. Mr. Berniard has also applied to the Honorable Judge Katz in the transferee court for a leadership position with the Plaintiff’s Steering Committee. If granted the position, he would be responsible for directing the strategic direction of national DePuy litigation. However, even if Mr. Berniard is not selected as a member of the Plaintiff’s Steering Committee he will continue to be a part of the litigation as a valuable member of one of the junior committees.

ASR Defective Hip Recall Surgery Claimant Interview Part 2

Published on: January 23, 2011 | By Berniard Law Firm

This is the second installment of Berniard Law Firm’s interview with client Eugene O’Neal (name changed to protect attorney-client privilege). In the first installment, it was revealed that Eugene’s DePuy hip implant had failed and he now requires revision surgery to remedy the problem. Below, Eugene shares his thoughts on having to endure hip replacement surgery for a second time as a direct result of DePuy’s faulty manufacturing techniques.

In addition to fear, Eugene possesses frustration at the weeks upon weeks of rehabilitation he will be forced to undertake in order to recover from his upcoming revision surgery. Following the original implantation of his ASR hip implant in 2008, Eugene endured sixteen weeks of physical therapy before he got to the point where he could adequately walk again. “After they saw your femur off, your body takes a lot of pounding,” Eugene explains. “During the first week of rehab, you have to learn to use your leg all over again. You just stare at your leg and tell it to move. But it won’t move. Your toes move, but your leg doesn’t.” When asked for his thoughts at the prospect of enduring a similar round of rigorous rehabilitation within the next few weeks, Eugene puts it tersely: “It will be a major disruption.”

Eugene makes no secret of his antipathy toward DePuy and its faulty manufacturing practices. “I can’t understand how they’d put a medical product on the market that deteriorates or comes apart in such a short amount of time. To have to get a replacement is just crazy.” Because of the company’s mistake, Eugene believes he’s paying the largest price. “I’m putting my life on the line,” he says, referring to the serious risks of revision surgery. When asked what DePuy owes him, Eugene explains that his ability to earn an income for his family is likely ruined. What’s more, the possible consequences of surgery make him worry about his family. He notes “you can’t put a price on my life, but if something happens to my family because of what DePuy did, they are responsible. I want my wife and kids to be taken care of if something happens to me because of this.”

Interview with Depuy Hip Replacement Claimant Requiring Revision Surgery – Part 1

Published on: January 21, 2011 | By Berniard Law Firm

To document the struggles of those encountering difficulties with defective DePuy hip implants, the Berniard Law Firm presents an interview with one of its clients. While the client’s name in the following article has been changed to protect attorney-client privilege, his story is true and, unfortunately, all too common for many others suffering from undue pain and hardship due to defects recently identified in recalled DePuy ASR hip implant units.

“Eugene O’Neil” never envisioned he’d once again face the pain and anxiety associated with hip replacement surgery. Only two years ago, Eugene was fitted with a DePuy ASR Hip Implant. At the time, his surgeon maintained the artificial joint would last 15 to 20 years before showing any signs of deterioration. For Eugene, his DePuy-manufactured hip implant lasted just a little over two years before completely failing. The warehouse worker from Georgia must now undergo revision surgery to replace his failed hip unit with a functional one.

Eugene’s story is not unique. After DePuy, a division of Johnson & Johnson, announced in August 2010 that it was recalling hundreds of thousands of its defective ASR hip implants from the American marketplace, swarms of patients suddenly realized that the intense pain and lack of mobility they had experienced following their own hip replacement surgeries were not an isolated phenomenon. At the moment, thousands of lawsuits are pending against the manufacturer for billions in dollars of pain, suffering, lost wages, and medical expenses. Revision surgery remains the only viable medical remedy for the alleviation of pain in those patients who have experienced complications from the recalled units. Like most other major surgeries, revision surgery carries with it an inherent risk of serious complications including further injury, or even death.

Court of Appeals Awards Bad Faith Damages Against Insurance Company Who Refused to Pay

Published on: January 17, 2011 | By Berniard Law Firm

For the family of someone killed in a tragic car accident faced with mounting medical bills there is nothing worse than learning that the driver at fault for the accident did not have insurance. Luckily, when that happens, you should be protected by the uninsured or underinsured motorist (UM) coverage on your vehicle. For the Jones Family, however, their UM provider refused to tender the policy limits even after undisputed evidence was provided that damages exceeded that amount. This nightmare happens to far too many families and is a sad reality during a time in which insurance companies try to limit payouts in any way possible.

Thomas Jones was severely injured when his motorcycle was hit by a vehicle driven by Bertha Johnson, and his wife Mary was killed. Johnson was entirely at fault for the accident but neither she, nor the owner of the car she was driving, had insurance coverage at the time. The Jones’ sought their policy limits of $100,000 per person/$300,000 per accident from their UM insurance and at one point the parties agreed that $200,000 would be paid. However the amount was not tendered due to disputes regarding liens from the Jones’ healthcare providers and the company’s concern regarding future claims.

Luckily the Jones had redress when their UM provider refused to pay. The Jones’ brought an additional claim against their insurer, the Markel American Insurance Company, and were awarded $100,000 in (additional) penalties as well as $10,000 in attorneys’ fees. In a recent decision (available here: 45,847-CA) the Louisiana Court of Appeals upheld that ruling.

DePuy Had Time to Recall Device, Chose to Not Notify Public

Published on: January 13, 2011 | By Berniard Law Firm

This blog has noted several times that DePuy knew of the likely failure rates of its ASR hip implants several years before the medical device manufacturer issued its 2010 recall of the product. In light of this knowledge, DePuy nevertheless waited years before it decided to remedy the dangerous situation caused by its defective hip implants. Instead, it chose to shift the blame for reported problems elsewhere before finally initiating the recall.

New evidence has been uncovered showing that DePuy had received credible notification of its ASR hip implant failure rates as far back as 2007. According to The Independent, the Australian joint registry, the second largest registry of its kind in the world, informed DePuy of identified problems in seven separate reports. One of the most striking findings made by the registry was the higher than usual amount of revision surgeries needed to replace previously-implanted ASR hip units. DePuy sat on this knowledge until 2009, when the company finally withdrew the ASR hip implants from the Australian marketplace, citing “commercial reasons.” DePuy initially blamed the Australian joint registry findings on “imprecise surgical techniques” by doctors, but was forced to retreat from that position in response to the multiple reports of problems sent the company’s way.

Director of the Australian joint registry, Stephen Graves, has since stated DePuy behaved “irresponsibly and very badly.” Graves warns, “This is why regulators should not rely so heavily on manufacturer data. It is a complete untruth that DePuy did not have reason to withdraw the ASR before now; we have been telling them since 2007, but they allowed it to be used on thousands of people.”

Artificial Hip Recall Shows Dangers of a Broken Medical Implant System

Published on: January 11, 2011 | By Berniard Law Firm

The A.S.R., or Aritcular Surface Replacement, artificial hip was promoted by Johnson and Johnson as a breakthrough in design that would last 15 years or more and provide patients with more natural movement. Now, the device has been recalled due to patients developing inexplicable pain and surgeons discovering mysterious masses of dead tissue in patients who are having the device replaced. DePuy Orthopedics, the Johnson and Johnson unit responsible for the hip and the largest maker of replacement hips worldwide, maintained that the hip was working for a long time despite warnings that it was a failure.

As pointed out in a recent New York Times article, the trouble with the hip is an indicator of a bigger problem: a piecemeal, broken medical implant system. Critical implants are sold without going through medical trials and testing or gaining FDA approval if the device resembles an implant that has already been approved. Theoretically, this allows manufacturers to make small changes to devices without having to jump through approval hoops; however, according to experts, it has also created a loophole that allows manufacturers to bundle an unapproved component into an existing design and sell it with minimal testing.

This is what happened with the A.S.R. as DePuy announced late last year that it was phasing the device out. However, the company blamed lagging sales rather than safety issues. In a recent statement an official stated that, “We believe we made the appropriate decision to recall at the appropriate time given the available information.”

Court Rules that Survival Suits Exists Against Insurance Company of a Dissolved Corporation

Published on: January 6, 2011 | By Berniard Law Firm

The death of a loved one can obviously be a hard time for a family. Families have to deal with many issues after the death of one of its members, and the financial implication of the death is a hard to handle issue. Many times financial issues may take a long time to materialize. When the death of a loved one is due to an accident or an effect from something on the job, many families have to sift through the complex legal system to see if they have any rights against the employer, or any third-party. Many people in the past have been impacted by exposure to asbestos. Many illnesses can occur due to this exposure, icluding malignant mesothelioma. Many families attempt to bring survival suits against employers when their loved one was exposed to asbestos during employment. The impact of asbestos exposure may not manifest itself for many years, or decades in the future. What if the corporation has changed hands? What if the corporation no longer exists? This last question was answered in a recent decision by the Appeals Court of Louisianna, Fourth District.

In Marcel vs. Delta Shipbulding Co.(Delta), the plaintiffs were survivors of a man who died due to malignant mesothelioma after exposure to asbestos while working for Delta. The plaintiffs were suing Delta’s insurance company, Continental Insurance Co.(Continental). The issue in the case was that the company went out of business in 1969. The employee worked there between 1948 and 1949. Continental argued that there could be no cause of action because the corporation was no longer in business. In trial court, Continental was able to successfully argue that due to today’s law, which states that all suits against a corporation are null and void three years after the dissolution of the corporation, the cause of action did not exist as a matter of law. Plaintiffs took their case to the appellate court arguing that the trial court was wrong to conclude that there was no cause of action.

The appellate court took the case as a matter of first impression. The Court had never dealt with a case where the corporation had went out of business prior to the enactment of legislation creating a cause of action in such circumstances. The new legislation was passed in 1969. The Court stated that the cause of action accrues in a long-latency occupational disease case when the tortious exposures are significant, such that they will later result in the manifestation of the disease. This meant that the cause of action accrued when the exposure occured back in 1948-49. The Court cited a Louisiana Supreme Court case for the proposition that a survival action accrues simultaneously with the tort, i.e. the exposure, and is transmitted to the heirs of the victim upon death. Based on this, the Court found that the appropriate law was the law that existed at the time of exposure, not the law that exists as it stands today. The statute in effect at that time was act 128. This act discussed the procedure of bringing an action against a dissolved corporation, but it did not discuss causes of action. Although the current law, which states that after three years a cause of action is barred against a dissolved corporation, would have barred this case, the law as it existed at the time of exposure would not bar the current suit, and that law is the law that applied to the current case. Continental brought forth case history that stated that any case against a dissolved corporation is abated at the time of dissolution. The Court was quick to state that even if that law would bar a case against Delta, it does not extend to parties other than the dissolved corporation like Continental. Therefore, the survivial action is not terminated due to Delta’s dissolved status.

In hard times, the last thing anyone wants to deal with is a difficult legal question regarding one’s rights. However, it is pertinent that potential legal issues be discussed with a lawyer as soon as possible. Each case has a time period in which it can be brought. It is essential that if you have a claim, or your think you have a claim, you should seek the advice of legal counsel as soon as possible so that time does not run out on your ability to take any kind of action on your claim.

For more information on asbestos exposure and mesothelioma, feel free to browse our blog dedicated to the topic.