Random Miscellaneous

Depuy ASR Hip Implants Too Shallow for Proper Implantation, Recall Issued

Published on: December 11, 2010 | By Berniard Law Firm

In August 2010, Johnson & Johnson subsidiary, DePuy, announced a recall of its ASR XL Acetabular System and ASR Hip Resurfacing System, two hip replacement components used in total hip replacement surgery. In the months that have followed, this blog has told readers about metallosis, one of the possible symptoms resulting from implantation of the DePuy ASR hip units. Metallosis is an allergic reaction by the body to metal ions contained in hip implant metal components such as High Carbon Content Steel, a cobalt-chromium alloy. But metallosis is not the only symptom of the defective DePuy hip implants.

Among the additional complications from defective hip implants are loose cups and pseduotumors, as well as fractures and friction transfer problems around the pelvis area. These symptoms can cause inflammation and loss of mobility, including loss of the ability to walk. Needless to say, these symptoms result in pain and frustration for many patients.

Several medical experts have stated that the DePuy hip implants were “too shallow” for implantation to begin with. They say the lack of depth within the hip implant units are one of the primary causes of patients’ complications. These experts have suggested that even the most skilled of doctors are likely unable to implant the flawed hip component in such a way to avoid complications. This means that the blame for DePuy rests primarily with its manufacturing process and not with surgeons. Predictably, DePuy denies that its ASR hip implants are too shallow and has attempted to shift responsibility to physicians.

Recalled DePuy ASR Hip Implants May Cause Pseudotumors and Increased Cancer Risks in Some Patients

Published on: December 8, 2010 | By Berniard Law Firm

Although not as likely to occur as metallosis or cobalt poisoning, pseudotumors and cancer remain possible symptoms for patients who have received a DePuy ASR Hip Implant since 2003. In August 2010, Depuy, a division of Johnson & Johnson, recalled hundreds of thousands of its ASR hip implant components from the American marketplace and began notifying physicians of the potential failure rates of these units. Thousands of patients have been affected by the recall, with billions of dollars in damages are at stake.

Because the hip implant cups’ defective design results in the unit oftentimes being too shallow for safe function, bits of metallic debris can generate when patients stand up and place natural forces on the hip implant joints. As a result of this metallic debris, patients’ bodies can begin to experience a wide array of adverse reactions. One such reaction is pseudotumors. Pseudotumors are a soft mass of tissue that form in response to a toxic reaction to the excess metal debris and can be a fluid-filled sac or a solid mass. These unfortunate tumors have been specifically found to oftentimes emerge around the hip implant site. Studies show that pseudotumors cannot be eradicated until all metal debris is purged from the body.

Another adverse reaction the body can have to excess metal debris is the onset of cancer. While this is an unsettling and, at this point, theoretical development, some medical researchers speculate that there may be a scientifically valid link between the chromium contained in DePuy hip implants and cancer. According to a report published by the EPA, chromium is a cancer causing agent. Depending on the class of chromium a human is exposed to, symptoms can range from the severe (hemorrhage and vomiting in the case of Chromium IV), to the relatively mild (moderate toxicity from oral exposure to chromium III). While the chromium contained in DePuy ASR hip components were originally designed to shield the chromium parts from the rest of the body, the excess metal debris generated by latent defects have increased chromium exposure in some patients. Although it is way too early to tell whether cancer is a legitimate consequence of DePuy’s defective ASR hip components, it is certainly a consequence that requires further looking into.

The purpose of alerting recipients to the potentialities of pseudotumors and increased cancer risks is not to instill fear into patients. Rather, it is to illustrate the fact that affected patients may face a multitude of complications that aren’t necessarily readily apparent today. For this reason , it is essential that patients do not sign any waivers or consent to any settlements with DePuy until an attorney has had the opportunity to calculate lingering risks that may still exist ten to twenty years after the recalled DePuy hip implant has been replaced by a functional and safe one.

Progressive Insurance Slapped With Penalty for Failing to Pay in Covington Car Wreck

Published on: December 5, 2010 | By Berniard Law Firm

Previously on this blog, we have explored several cases that profiled the often contentious role that insurance companies play in auto accident litigation. In the interest of seeing that consumers get the benefits of the policies they pay for and to promote a speedy resolution for third parties who have legitimate claims, the Louisiana legislature enacted a law that requires insurers to pay claims within 30 days of being notified with a satisfactory proof of loss by the insured. La. R.S. 22:1892. An insurer’s failure to do so, if “arbitrary, capricious, or without probable cause,” can mean a penalty for the insurer of up to 50 percent of the claim amount, in addition to attorneys’ fees and costs. This requirement was at the center of the recently decided case, Krygier v. Vidrine.

On October 11, 2006, Kenneth Krygier was a passenger in a rented Chevy Cobalt being driven by his co-worker, Billy Toon. Krygier and Toon were on the way to their employer’s office in Covington when their vehicle was rear-ended by a Ford Explorer operated by Karen Vidrine and insured by Liberty Mutual. Toon also carried an insurance policy with Progressive that provided uninsured/underinsured motorist (“UM”) coverage to all occupants of an “insured” vehicle. Vidrine’s policy with Liberty Mutual had a limit of only $30,000 per incident, so when Krygier filed suit against Vidrine for the injuries he suffered in the crash, he also named Progressive and his employer as defendants. Progressive first denied responsibility for UM coverage because it alleged the rented Chevy wasn’t an “insured vehicle” under Toon’s policy, Krygier was not a “covered person” under the policy, and Vidrine was not underinsured. The parties filed cross-motions for summary judgment on these questions, and in December, 2007, the trial court determined that coverage under Progressive’s policy extended to Toon’s rental car and to Krygier as a guest passenger.

As part of the discovery process, Liberty Mutual served on all parties a copy of the policy with the $30,000 limit it had issued to Vidrine covering her Explorer. Nevertheless, Progressive took the position that it did not have sufficient documentation establishing that Vidrine was underinsured at the time of the accident. In January of 2008, Krygier gave a deposition during which he testified about his injuries, his ongoing medical treatments, and his pain and suffering. Krygier also provided documentation regarding his employment, lost earnings, and medical treatment in response to Progressive’s discovery requests. In November, 2008, Krygier filed an amended petition for damages in which he sought penalties, attorneys’ fees, and costs based on Progressive’s failure to tender its policy limits upon receipt of satisfactory proofs of loss. Krygier received only $15,000 from Vidrine’s Liberty Mutual policy (the balance of which was paid to Toon). Krygier alleged that, based on this result and the outcome of prior proceedings in the matter, Progressive was well aware that Vidrine did not have sufficient insurance to cover the damages he sustained in the accident. Progressive’s failure to pay, Krygier argued, amounted to a violation of the statute requiring a timely tender of payment. Accordingly, Krygier asked for $50,000 in penalties (half the policy’s $100,000 limit), together with reasonable costs and attorneys’ fees. The trial court granted Krygier’s motion, finding that Progressive was “arbitrary and capricious in failing to promptly tender policy limits,” and awarded penalties in the amount of $50,000 to Krygier. The judgment further awarded Krygier “the remaining interest owed on the policy limits, plus attorneys’ fees and costs.” Progressive appealed to an unsympathetic First Circuit. The court stated, “we find reasonable persons could reach only one conclusion, i.e., that Progressive acted arbitrarily, capriciously, or without probable cause in not tendering its policy limits within thirty days of” first learning of Krygier’s legitimate claim. The court affirmed the $50,000 penalty awarded by the trial court.

In this case, Krygier’s misfortune was only compounded by Progressive’s efforts to protract the litigation and delay payment. In situations like this, it is especially important for an accident victim to have an experienced attorney on his side to ensure he gets the recovery he deserves.

Court Examines Question of Insurance Policy Coverage Limitations After Tragic Car Accident

Published on: December 3, 2010 | By Berniard Law Firm

Many employees routinely use their own automobiles in the course of their employment. Whether running an occasional errand on behalf of the company, or using a car to make door-to-door sales calls, employees who drive their vehicles for the benefit of their employers may wonder how liability is affected if they are involved in an accident. Generally speaking, an employer is responsible for the negligence of its employees who operate motor vehicles on behalf of the company. For this reason, employers maintain liability insurance policies that cover them for losses that may arise from auto accidents caused by employees. Like other policies, these liability policies can be subject to specific limitations to coverage as arranged between the employer and the insurer. One example where the language of the policy exceptions proved determinative is the 2010 case of Anderson v. State Farm Fire & Casualty Insurance Co.

Donald Anderson worked for Labor Finders, a staffing agency with offices throughout the state of Louisiana. Anderson was killed when an oncoming motorist, Gordon Pugh, Jr., crossed the center line and struck his car as Anderson was driving to an appointment for work. After her father’s death, Monica Anderson filed a wrongful death action which named Pugh, Pugh’s insurer (State Farm Fire & Casualty Insurance Company), and National Union Fire Insurance Company as defendants. National Union was included because the company had issued a liability policy to Labor Finders which was in effect at the time of the accident. This policy, which applied to employees of Labor Finders, contained an endorsement for uninsured/underinsured motorist (UM) coverage. National Union answered, denying that Anderson was covered under the policy. Monica settled with Pugh and State Farm, after which National Union filed a motion for summary judgment. The trial court concluded that under the clear and unambiguous terms of the policy, Donald Anderson was not covered.

On appeal, the First Circuit conducted its own detailed analysis of the policy language. After noting that “insurers have the right to limit coverage in any manner desired, so long as the limitations are clearly and unambiguously set forth in the contract and are not in conflict with statutory provisions or public policy,” Campbell v. Markel American Insurance Co., the court found that an exclusion within the National Union policy which denied coverage to any employee who was injured in the course of operating an automobile applied to Anderson’s death. The court also concluded that Anderson was not covered under the policy’s UM endorsement because it extended coverage only to a “partner or officer” of Labor Finders, of which he was neither. Accordingly, the court concluded that the trial judge correctly found that Anderson was not eligible for liability coverage under the National Union policy, and affirmed the decision.

The Anderson case provides a warning to employees that they should not assume they will necessarily be covered by their employer’s insurance policy if they are involved in an accident–particularly, as here, one where they are not at-fault. We can presume, though it is not stated in the court’s discussion, that Monica Anderson settled with State Farm (the at-fault driver’s insurer) for a sum that was within the policy limits. The suit against National Union was, perhaps, an understandable attempt to obtain more funds beyond those she received in the State Farm settlement. While Monica’s situation is tragically sympathetic, the court made it clear that an issuer can use the language of a policy to limit coverage substantially, even to the detrmiment of an “innocent” party.

Distressing and Dangerous Symptoms of Metal Poisoning Caused by Defective DePuy ASR Hip Implants

Published on: December 1, 2010 | By Berniard Law Firm

Of the many symptoms stemming from the recalled DePuy ASR Hip Implants, perhaps metallosis is the most alarming. Metallosis is a form of metal poisoning caused when metal parts of the implant rub up against each other, generating large quantities of microscopic metallic debris that is absorbed by surrounding bodily tissue and the blood stream. The metal parts can rub together as a result of fracture, loosening, or dislocation of the hip implant component parts. Under normal operating conditions, hip implants should not generate noticeable amounts of metallic debris.

When the microscopic metallic debris enters the bloodstream, the body’s immune system recognizes the metallic debris as foreign agents, much like a bacteria or virus. This is a form of blood poisoning. As a consequence, the body creates an immune response that can include swelling, inflammation, and internal scarring. Further, reactions from the white blood cells generated by the immune system in order to stave off the invasion of the metallic debris can cause the loss of muscle, nerve, and bone tissue around the hip implant location, resulting in the inability to walk, as well as the onset of severe pain, in some individuals. Tumors have even been observed forming around the areas of the body where large quantities of metallic debris have developed in those with metallosis.

In its Recall Reference Guide, DePuy notes that recipients of the defective hip implants should receive a number of tests to detect for metallosis, including blood tests for elevated cobalt and chromium levels by way of a Mars MRI or ultrasound. It could take at least a couple of these tests to determine whether a patient’s blood has toxic levels of chromium or cobalt, and the results of these tests aren’t always immediately available. In fact, the DePuy reference guide suggests follow-up tests for some individuals as long as three months after the initial MRI to see if the metal debris levels have increased or subsided. If a final test shows a positive toxicity of metal in the patient’s blood, then the only remedial medical action available is a revision surgery to extract the flawed hip implant and replace it with a functional unit. Revision surgeries are not only costly, but they can bring with it risks and dangers inherent in any major medical operation.

Due to the serious nature of metallosis, and the corresponding revision surgeries associated with the recalled DePuy ASR hip implants, it is likely DePuy will be legally responsible for billions of dollars worth of damages. Unquestionably, DePuy’s legal and scientific teams understand the dire consequences the recalled hip implants have created and will do everything possible to lessen the amount it owes to victims. With the potential for crippling ailments such as metallosis listed above, it is critical hip implant recipients consult an attorney before making a final settlement with DePuy.

FDA Releases Lot Numbers for DePuy Hip Replacement Recall

Published on: November 29, 2010 | By Berniard Law Firm

In its October 13th Enforcement Report, the Food and Drug Administration released the lot numbers for hip implants affected by the DePuy recall. The defective implants include models within the ASR 100 and ASR 300 series. The enforcement report mentions “component loosening, component malalignment, infection, pain, fracture, dislocation and metal sensitivity” as reasons behind the recall. According to the report, there are 36,486 defective models in the stream of commerce at the time of publication.

A federal agency, the FDA, is charged with administering rules and regulations pertaining to food and medical products sold and marketed throughout the United States. The agency also acts as a watchdog to ensure medical devices are safe for consumer use prior to market approval. When the FDA or a manufacturer discover a product is defective after it has entered the marketplace, the FDA can use its regulatory powers to enforce a market recall.

As a matter of FDA compliance, DePuy, a Johnson & Johnson company, announced the recall of thousands of its hip implants in August amidst reports that 1 in 8 recipients had incurred some type of injury after insertion. Perhaps the most severe injury reported was metallosis, a condition that occurs when metal shavings from the implant lodge themselves into surrounding muscle and skeletal tissue. Metallosis is caused by the defective design of the DePuy implant, especially metal components that rub together without any lubricant or cushion in between them.
Due to the sheer amount of defective units released into the marketplace, DePuy hip implant recipients have been retaining attorneys for legal advisement during the past few months. One issue sure to define the direction of upcoming litigation is how long DePuy had knowledge of the hip implant defect before initiating the recall. Surfaced documents have suggested the company knew as far back as 2005 that the implants posed serious dangers to its users. Moreover, similar documents indicate the recalled hip implants were never properly approved for domestic use in the United States and thus were never scrutinized under usual consumer safety testing procedures. If this is the case, then the potential remedies for aggrieved individuals are sure to increase in scope.

Additionally, complications have arisen for recipients whose injuries were so serious that revision surgery was required. For those who had to incur a second surgery to rectify the harm caused by the implants lost wages, increased medical bills, and pain and suffering were all dreadful consequences these particular individuals endured in order to remedy their injuries. Clearly, the fallout from this recall will prove to be substantial.

The Berniard Law Firm has worked diligently in the past months to gather the facts and circumstances surrounding the DePuy hip implant recall. The firm has been adequately preparing for eventual litigation in order to assist recipients in the recovery for injuries caused by the implants.

Berniard Law Firm Lead Chosen to Educate Lawyers on DePuy Hip Replacement Matter

Published on: November 22, 2010 | By Berniard Law Firm

Lead attorney Jeffrey Berniard recently educated fellow lawyers on the complexities of litigation concerning the ASR DePuy hip implant replacement recall. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the DePuy matter due to his involvement in the ongoing litigation over the matter as well as his experience in product defect representation. Through the CLE program, attorneys are able to continue to develop understanding for new issues and few may have a bigger impact than this hip replacement matter.

Recalled some years after DePuy and parent company Johnson & Johnson were aware of an unacceptable failure rate, the ASR hip unit was utilized in the replacement surgery of over 80,000 people. The prosthetic, which normally would last for over a decade, is now failing for far too many in as short as three years. Upwards of 1 in 8 patients faced problems with the item, forcing DePuy’s hand over time and leading to the eventual recall. Resulting in an unwelcome revision surgery that required additional hospital time and an obvious second procedure, this failed implant system has caused nothing but problems for individuals of varying age that trusted the item would be an element of progress after their own hip had failed.

From a liability standpoint, it remains unclear how the courts will address DePuy’s actions. The company itself has limited its responsibility to those who received the implant to a replacement and those limited costs related to swapping their defective product for a functional item. However, the sheer amount of discomfort, pain and problems suffered by those with the item makes such a response seem not only disheartening but frustrating. The faulty implant has been tied to a variety of ailments, including general pain and discomfort, limited mobility, health problems and continued hip failure. That the company would only agree to cover expenses related to rectifying their faulty product is telling and a great illustration of why contacting a legal expert is necessary for recipients.

Recipients of DePuy ASR Hip Implants Should Be Wary of Physicians Letters Requesting Release of Medical Records

Published on: November 20, 2010 | By Berniard Law Firm

In August 2010, medical device manufacturer DePuy announced a recall of thousands of its defective ASR hip implants. Since that time, implant recipients have reported receiving letters mailed from their physicians’ offices urging them to visit their doctors so that MRIs and other tests can be conducted. The timing of these mailings is no coincidence. Patients who receive these letters should contact an attorney before acting or responding.

At first glance, these letters appear to be nothing more than innocuous correspondence to patients from their physicians. However, included within these letters are multiple requests to sign a release form authorizing DePuy access to the patient’s medical information, as well as an enclosed copy of the release form itself. The letters urge patients to sign the authorization form so that DePuy can efficiently process the patient’s claim for follow-up treatment or revision surgery.

While recipients of the DePuy ASR hip implants should visit a doctor to discuss any potential medical problems, they should under no circumstances sign any authorization form which allows DePuy access to their medical records. By signing an authorization form, a patient effectively allows DePuy to scrutinize their health information for evidence that might supply a basis to deny coverage for any follow-up medical treatment, even if that evidence is dubious or scientifically questionable. If DePuy altruistically wished to stand by its initial claim of paying for follow-up treatments and revision surgeries associated with the recall, medical authorizations of this type would be unnecessary. Indeed, the authorization forms patients have reported have conspicuously stated that DePuy will use the patient’s released medical information for purposes of “manufacturer’s investigation.” This language suggests DePuy may be using the authorization forms as a guise to limit its liability towards recipients rather than for good faith efforts to fix any problems its defective hip implants have created.

Another legally questionable aspect of the letters are statements urging patients to cooperate with DePuy so the company can process patients’ claims more efficiently. These statements are presumptuous in so much they surmise that patients will agree to use the DePuy internal claims process in the first place. Patients are under no obligation to remedy their injuries by using the DePuy claims process. Instead, they have every right to utilize the judicial system for resolution of their claims. Certainly, use of the civil legal system with the assistance of an attorney is the recommended approach when negotiating a claims settlement with DePuy. Alternatively, if patients do decide to use the DePuy internal claims scheme, DePuy will likely settle for only pennies on the dollar since such patients do not have the assistance of legal counsel. Utilization of the DePuy internal claims system would likely result in a decidedly one-sided resolution largely in favor of DePuy. For this reason, patients should proceed cautiously.

If you have received a letter from your physicians’ office requesting you come in for MRIs, blood tests, or other examinations to tell whether your DePuy ASR hip implant is compromised, you should contact the attorneys at Berniard Law Firm for timely advice.

The Importance of Reading Your Insurance Policy: Louisiana Court of Appeals Denies Coverage in Logging Accident Case

Published on: November 18, 2010 | By Berniard Law Firm

In a recent Louisiana Court of Appeals case, an injured logger was not able to collect damages from his employer’s insurance company because the subcontractor at fault for the accident was found to be not covered.

Travis Palmer was working for A.T. Martinez (ATM), LLC, as a logging truck driver and was injured when he was struck by a log while his employer’s truck was being loaded with timber. Palmer sued his employer’s insurer, Royal Indemnity Company (Royal), alleging that they provided general liability coverage even though a subcontractor, KLM Logging (KLM) was at fault. The trial court granted a motion for summary judgment in favor of the Palmer and found that the insurance policy in question covered KLM but the court of appeals disagreed on appeal.

Royal denied coverage here on the primary grounds that KLM did not meet the definition of “an insured” or an “additional insured” under the terms of the policy issued to ATM. In addition, there was no agreement between ATM and KLM that required ATM to name KLM as an insured for the timber cutting/loading operations or for any other subcontractor work. KLM and ATM did allege, however, that had an oral agreement that ATM’s insurance would also cover KLM. The two owners of the respective corporations (who happen to be parent and child) claim that KLM paid insurance premiums to Royal for this coverage by virtue of ATM withholding part of the payments they owed to KLM. ATM believed that the policy covered their subcontractors, even though the owners admitted they never read it.

American Academy of Orthopaedic Surgeons Issues Warning to Patients about Metal-on-Metal Hip Implant Surgery

Published on: November 16, 2010 | By Berniard Law Firm

According to the American Academy of Orthopaedic Surgeons, total hip arthoplasty, which involves medical devices such as those manufactured by DePuy, is usually a very successful surgery for the majority of patients. Total hip arthoplasty, or THA, is medical code for hip replacement surgery. Hip replacement surgery involves the insertion of a hip implant unit in the affected area of the body. As the name of the surgery suggests, hip implants “replace” the original bone joint of the hip.

One of the most frequently used hip implants are metal-on-metal ball and socket units comprised of chromium alloy. Metal-on-metal hip implants were originally thought by doctors to be the safest option for patients, as they were marketed by manufacturers as having a tendency to wear out less than other types of implants. Furthermore, the metal-on-metal units feature a larger ball, which is supposed to ensure a dislocated hip does not occur. However, recent studies of metal-on-metal units have alarmed some physicians, causing them to question the safety of metal-on-metal implants.

One finding that has raised medical professionals’ eyebrows is the onset of pain in some patients after THA surgery. As a spokesperson for the American Academy of Orthopaedic Surgeons stated, ìIn general, a patient should be relatively pain-free three months after any hip replacement surgery. Any new pain or increase in pain at that point should be promptly communicated to your surgeon, as it may indicate a complication.î In a case report published in the Journal of Bone and Joint Surgery, two patients reported painful complications after receiving a metal-on-metal implant. The patients were relatively healthy 47 and 49-year old males. Further analysis of the patients showed that cobalt toxicity from their metal-on-metal implants were the source of their pain. Cobalt toxicity in a patient’s circulatory system causes metallosis, a form of blood poisoning resulting from the generation of microscopic medical debris when two metal pieces in a defective hip implant begin to improperly rub against each other.

The symptoms reported in the case report of the 47 and 49-year old males are similar to the symptoms experienced by recipients of the recalled DePuy ASR hip implants, a defective metal-on-metal hip implant unit. Up to 13% of patients who have received a DePuy ASR hip implant are susceptible to metallosis, as well as disfigurement, loss of flexibility, or even the loss of the ability to walk. In light of the recently discovered risks of the DePuy ASR hip implants and metal-on-metal implants manufactured by other companies, president of The Hip Society, Dr. Chiltranjan Ranawat, MD., warns, “[W]e want to elevate patient awareness about metal-on-metal hip replacements. We suggest any patient who received a metal-on-metal hip inform all medical care givers about their joint replacement device and pay attention to post-operative pain.”

If you have received a Depuy ASR hip implant or are experiencing complications from a metal-on-metal hip implant manufactured by another company, contact the Berniard Law Firm today.