Random Miscellaneous

DePuy Hip Replacement Failure Worries Many

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

A hip replacement surgery is a very serious, very invasive surgical procedure that many people, unfortunately, have to undergo. A hip replacement surgery is not just a procedure for older people: Louisiana residents of all ages have undergone hip replacement surgeries over the last decade. In that time, great progress has been made on developing durable, workable hips so that area residents, and elsewhere, can continue to live their lives unaffected and unhindered by the hip prosthesis. However, it has recently come to the public’s attention that DePuy, the orthopedic division of Johnson & Johnson, manufactured a defective hip implant that went unchecked for years until its recall this year. In fact, DePuy knowingly marketed a defective product and as a result, over the last few years, almost 100,000 patients have received a defective hip. If you are a Louisiana resident who received a DePuy hip, the law is on your side.

A hip replacement failure can result in very serious injuries for the patient, in addition to the revision surgery that the patient will very likely face. Patients receiving DePuy hips have experienced failure in the unit in as short as five years or less, as opposed to the regular 10 to 15 years that similar devices tend to last. However, if you received one of these defective hips the law has favorable for allowing those who have received a defective product to recover personal injury damages.

Louisiana patients should be on the look-out for certain signs that their hip replacement device is failing. Signs of failure include swelling of the hip area, popping or clicking, pain, loosening or implant dislocation, and fractures. Don’t forget that a failed device can cause even more serious injuries than just a fractured hip, as there are several different implications that can arise. In the DePuy case, doctors are also concerned about toxins from the metal implant seeping into patients’ bloodstream, potentially poisoning their bodies. It is in the best interest of individuals who suspect a failing DePuy hip replacement has been used in their corrective surgery to get a blood test immediately.

Thus many are left wondering: what do you do if you have a DePuy hip? For those with the ASR Hip Resurfacing System, it is imperative that you talk to a lawyer to discuss your legal rights. In cases like this there is a statute of limitations which says that even if you have a valid claim, waiting too long or delays in bringing your case can lead to a failure in recovering monetary damages for your case. If you have suffered pain, lost wages, or been forced to spend less time with your family as a result of your defective hip, you could be eligible for money damages.

An experienced attorney can work with you in bringing a lawsuit against DePuy, the manufacturer of the defective hip implants. The law protects you, the consumer, from deceptive marketing and manufacturing. If you have a DePuy hip, or another other hip implant that is causing you problems, reach out to the Berniard Law Firm today.

DePuy Asking Patients to Sign Consent Forms Endangers Rights

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

Recently, Johnson & Johnson’s DePuy Orthopaedics unit recalled their ASR Total Hip System due to serious issues that have caused thousands of individuals serious problems. The company said it will pay any medical expenses related to having the hip implant device; however, the patients have had to agree to certain conditions in order to receive such compensation. Many analysts warn that agreeing to such conditions may hurt individual’s legal rights and that the company is attempting to protect themselves from further legal trouble instead of protecting the people they have hurt.

The DePuy ASR hip implant became available initially in July 2003, and, from 2003-2010, over 95,000 individuals worldwide have received the implant. However, serious complications have been found after having such implantation. First, the device has been found to become loose, causing bone fractures and even bones breakage. Further, the metal on metal piece creates friction when the individual simply walks, causing soft tissue damage surrounding the device. One out of 8 individuals had to receive a second corrective surgery in order to completely remove the DePuy device, however, many remain in pain and discomfort, unable to do daily tasks that were once second nature.

The company has listed on their website a list of steps individuals should take if they have had such an operation. First, the individual is asked to, if they have had any hip implant since 2003, go to their doctor and/or hospital and receive documentation of such procedure, with proof they have had a DePuy implant. This alone is not problematic; however, the company continues to say that they will, “cover all reasonable and customary costs of testing and treatment, including revision surgery if it is necessary, and associated with the ASR recall.” This single phrase alone has a lot of indefinite terms — they “may” cover, and “reasonable,” what do they consider reasonable? How are they defining such terms? What is more troubling is the fact that patients are required to provide DePuy with their medical records, as well as the faulty hip implant. This is in addition to signing a consent form, without such signature the company stipulates that “it is unlikely that we will be able to consider the patient’s claims for reimbursement and prompt resolution of their claim may not be possible.” Thus, this forces individual’s to sign a consent form, without legal representation, and places them in a vulnerable position that may hurt their chances at receiving just compensation in the future.

Claims against Johnson & Johnson and DePuy for the Recalled Hip Replacement Device

Published on: October 14, 2010 | By Berniard Law Firm

Recently, DePuy Orthopaedics, Inc., announced they were recalling the DePuy ASR Hip Replacement System as a result of serious device complications. However, DePuy has known since approximately 2005 that the ASR system was defective and causing individual’s unnecessary pain and discomfort. Additionally, the ASR system has caused almost 13% of patients to undergo a second corrective surgery that completely takes out the DePuy device due to the severity of resulting complications. In short, patients who have received the DePuy ASR Hip System have reported experiencing difficulty maintaining daily routines, or even enjoying simple acts such as walking, or bending down past the waist.

DePuy has limited its offer of compensation to the costs of medical care provided. Particularly, in DePuy’s published reports, the company states they will cover, “reasonable and customary costs of monitoring and treatment services.” However, before an individual contacts DePuy or Johnson & Johnson, they should be aware of their legal rights and have them protected throughout this process. DePuy’s limitation on compensation ignores the other experiences and factors individuals will most likely go through after having a defective DePuy hip implant. For instance, DePuy will not cover the costs associated with the daily physical pain experienced, nor the additional hospital monitoring, prescription costs, lost wages or decreased earning capacity, disfigurement, or even disability. These are just a handful of damages that may be claimed against DePuy that they are stating they will not cover.

Patients have reported time and time again that, after receiving the DePuy ASR Hip Replacement System, they experienced complications that caused them severe physical and mental stress. For instance, a plaintiff who filed recently against DePuy in Maryland claimed that the metal on metal device actually became disassociated and the neck of the device became stuck in their anterior capsule, while the other part of the device slid along the iliopsoas tendon up to the hemipelvis anterior to the acetabulum. Essentially, the device was injuring the person’s entire hip area causing severe damage. As a result of the disassociation of the device, the plaintiff had to undergo a separate abdominal incision to remove the disassociated components. The plaintiff suffered numerous complications, including deep vein thrombosis, external iliac artery thrombosis, and damage to the left hip and left foot. The plaintiff claimed permanent damage and pain associated with the defect of the DePuy device. Further, as a result of DePuy keeping the defective product on the market (when they had almost four years of complaints and reports illustrating the defects in the device)the plaintiff suffered great pain, loss of mobility, emotional upsetment and anxiety, and has incurred and will continue to incur large sums of medical care and attention.

Having legal representation can help guide affected individuals throughout these serious issues associated with the recalled DePuy ASR Hip replacement System. Financial compensation may be available to those who have received the DePuy ASR hip replacement system. Also, patients may be entitled to damages including pain and suffering, past and future pain, lost earnings, medical bills, disfigurement, monitoring, rehabilitative and pharmaceutical costs. Contact the Berniard Law Firm for help throughout this difficult process. You do not have to go through this ordeal alone, especially when an attorney can help you navigate this process.

Understanding the DePuy Implant Problem – Recipients Likely Entitled to Damages

Published on: October 12, 2010 | By Berniard Law Firm

On August 26, 2010, the Johnson & Johnson subdivision known as DePuy recalled the DePuy ASR Hip Replacement System due to the overwhelming number of individuals who have experienced serious complications due to the implant. The recalled DePuy Total Hip System has been implanted in individuals since 2005 in the United States and since 2001 internationally. This has resulted in over 93,000 individuals who have received the DePuy Total Hip Replacement System. Below, the DePuy Recall is discussed in a clear and understandable format to help individuals explore the issues that might be affecting them.

What are the Specific Problems?

The DePuy ASR Hip Implant system has caused thousands of individualís difficulty in performing even the most simple daily tasks, causing unnecessary stress for individuals who have already experienced the traumatic event of undergoing an invasive and serious surgery. Further, the DePuy Hip System has caused approximately 1 out of every 8 individuals to undergo at least one corrective surgery in order to completely remove the DePuy device. Some of the physical complaints patients experienced and expressed after receiving the initial operation have included:

– Pain
– Swelling
– Inflammation
– Difficulty walking
– Trouble bending
These symptoms can continue months and even years after the initial implantation of the DePuy device. Further, these symptoms may be a sign of a larger problem, such as an infection or damage to the hip area as a result of the DePuy metal on metal device defects.

Why is the DePuy Device Causing these Symptoms?

The DePuy ASR Hip Replacement System is a metal on metal device that has multiple issues that has resulted in individuals needing the second corrective surgery to completely remove it. Specifically, the ASR Hip is designed to mirror a person’s natural hip, utilizing a ball and socket that move against each other in order to function as a person’s natural hip would when moving. However, this back and forth movement of the metal ball in the metal socket creates friction and then produces metal shavings that become lodged within the socket as well as the surrounding soft tissue of the individual. A person’s body may have different reactions to this metal build up, including creating fluid to collect in the joint and in the muscles around the joint, resulting in severe pain and swelling that could damage the muscles, bones, and nerves around the person’s hip area.

Further, the DePuy ASR Hip System also has problematic issues that include the device loosening. The metal on metal device is constantly rubbing against itself, causing metal shavings, as well as becoming loose. Once the device becomes loose it may not stay attached to the bone in the correct position in the person’s hip. Thus, creating severe pain, swelling, difficulty moving, and even bone fractures.

Dislocation of the device is also a troubling element, where the two parts of the implant move against each other become dislocated, and no longer are aligned, the device may actually cause the bones in the area to break, fracture, or become severely bruised.

What You Can Do
If you have had hip surgery since July 2003, you may have received the recalled DePuy ASR Total Hip System. With medical test and legal guidance you may be awarded financial compensation. Contact the Berniard Law Firm for help throughout this difficult process. You do not have to go through this ordeal alone. Damages patients may be entitled to include pain and suffering, past and future pain, lost earnings, medical bills, disfigurement, monitoring, and rehabilitative and pharmaceutical costs.

Do DePuy ASR Hip Implant Recipients Need an Attorney?

Published on: October 10, 2010 | By Berniard Law Firm

As over 93,000 DePuy ASR Hip Implant recipients face the reality of the recent recall that requires the replacement of the orthopedic device, many wonder if they need an attorney to represent their legal rights. The reality of the matter is that all indications show that the company, owned by Johnson & Johnson, is attempting to limit its legal responsibilities in the wake of the failing implant at the expense of government agencies and insurance companies. What’s more, the company has not shown any significant interest in compensating those who have been affected by the need to replace or fix their implant and, instead, appears to be looking out for itself.

While these are bold accusations, all signs indicate that DePuy is taking a hands-off approach from this matter. Specifically, the company has made no public statements regarding compensating people for their pain and suffering. In fact, DePuy’s only demonstration of regret and interest in paying individuals for their losses surrounds compensating patients for out-of-pocket expenses. Encouraging those with failing implants to document the costs relating to the implant, the company is, at least publicly, only encouraging claims of things like gas and medical expenses related to replacing the joint substitute.

On its own website, DePuy acknowledges this interest of repaying implant recipients for “reasonable and customary costs of testing and treatment if you need services, including revision surgery if it is necessary, associated with the recall of ASR.” Nowhere in this passage does the company acknowledge the months to years of pain and damage caused by a failing implant that the company knew, as far back as 2007, was problematic. This is not acceptable to our law firm, much less the many implant recipients who have suffered limited mobility, extreme pain, difficulty with movement or general use of the implant and issues of metal shavings in the soft tissue. What’s more, those who have had to undergo revision surgery before the recall would argue the stress and undue problems relating to undergoing another effort at replacing a failing hip is nothing to be ignored.

Baton Rouge Car Accident Leads to Conflict of Interest and Defense Waiver by Insurance Company

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

Automobile insurance policies commonly include a clause that requires the insurer to provide a legal defense for claims made against the insured driver. Insurers have a right to contest coverage for any claim, though, and when this happens the insurer is faced with the dilemma between its contractual duty to defend the insured and its interest in avoiding coverage. This is because the insurer has a duty to defend its insured even though it may ultimately be determined that it does not have any liability for coverage. This duty is avoided only in cases where it is absolutely clear from the facts that coverage does not apply; where the existence of coverage could turn on the resolution of the plaintiff’s allegations, however, the insurer is obligated to provide a defense.

The Louisiana State Bar Association’s Committee on Professional Ethics and Grievances has stated in a formal opinion that “[w]here the insurer either denies coverage to the insured or reserves its rights to do so subsequently, … the Committee is of the opinion that it would be improper … for the same attorney to represent both the insurer and the insured” See Opinion No. 342 (May 30, 1974). Accordingly, under Louisiana law, if the insurer chooses to represent the insured but deny liability coverage, it must employ separate counsel. See, e.g., Belanger v. Gabriel Chemicals, Inc., 787 So.2d 559 (La. App. 1st Cir. 2001).

This issue was central to the resolution of Wrights v. Progressive Casualty Insurance Co., No. 2010-CA-0327 (La. App. 1st. Cir. 2010). On April 25, 2006, the vehicle in which Nedra Wrights was traveling was rear-ended by a car driven by Joshua Tourere. The impact sent Wrights’s vehicle off the road where it struck a sign and two parked cars. When the crash occurred, Tourere was running an errand for his employer, T&T Seafood. Progressive Insurance had issued an automobile libility policy to T&T which listed coverage for several specific vehicles. The car Tourere was driving was not among those listed on the policy. Thus, after being informed of the accident and investigating, Progressive sent T&T a letter concluding that there was “no coverage available for this loss.” This letter did not inform T&T that it should consult its own attorney if it wished to dispute Progressive’s decision about coverage. Despite having sent this correspondence to T&T, Progressive subsequently appointed a single attorney to defend both Progressive and T&T when Wrights filed her lawsuit on February 21, 2007. In fact, this attorney represented both T&T and Progressive through the answering of the complaint and part of discovery. Not until some 17 months later did Progressive provide a second attorney for T&T’s separate defense. Shortly after doing so, the attorney then solely representing Progressive obtained critical information about the case through an affidavit from the owner of T&T without informing the owner that he, the attorney, no longer represented T&T. After obtaining the affidavit, Progressive filed a motion for summary judgment asserting that there was no coverage under the policy. T&T responded by arguing that Progressive had waived any defense it may have had over coverage by initially appointing the single attorney to represent both itself and T&T in the matter. After a hearing, the trial court denied Progressive’s motion and granted T&T’s.

On appeal, the First Circuit noted that the “actions on the part of Progressive not only constituted a conflict of interest, but they constituted conduct so inconsistent with an intent to enforce its right to assert its coverage defense as to induce a reasonable belief that the right had been relinquished.” Additionally, the court observed that “T&T was represented by an attorney who actively took steps detrimental and prejudicial to its position in the lawsuit.” Accordingly, the court found that “Progressive waived its coverage defenses by assigning only one attorney to represent itself and its insured for seventeen months despite having knowledge of facts indicating noncoverage under the policy,” and affirmed the trial court’s decision.

This case offers a reminder that when a car wreck occurs, insurance coverage may not be clear and straightforward. While clearly a crucial question for the defendant, it is also important for the plaintiff, as the defendant himself may not have sufficient assets with which to satisfy a judgment for damages. Either way, bringing an attorney into the situation is crucial because they can spot such conflicts of interest and make sure that your legal interests are maintained and protected.

DePuy ASR Hip Recall Demonstrates Flaws in System; What to Do If Your Hip Implant Fails

Published on: October 6, 2010 | By Berniard Law Firm

The recall of DePuy ASR Hip implants by the company and its parent corporation Johnson & Johnson demonstrates a problem that has has raised the ire of watchdog groups for years. This device, designed to replace the failing hip of individuals across the United States, is merely one in a line of products that have been recalled by Johnson & Johnson this year and in the past decade. The orthopedics division, in particular, has been hit especially hard and extensive criticism has befallen CEO Bill Weldon.

When a company faces consistent problems with their sold goods, especially at the manufacturing stage, suits develop alleging product defect. As information has come out that indicates DePuy may have known of problems relating to their hip implant some three years ago in 2007 raises the legal assertion of negligence. Failing to notify the public that their product was causing problems has put many up in arms, and rightfully so. The amount of pain, suffering, lost time and emotional distress that undergoing revision surgery has caused patients who have the DePuy implant is significant.

Some are wondering just what can be done if their orthopedic device is failing. The first step that can be taken is to begin immediately documenting expenses related to the failed implant. Whether doctor appointments, prescriptions, travel expenses, etc., all of these records should be written down. Doing so can help you and your attorney while calculating your damages related to this matter. The courts will be in charge of calculating pain and suffering damages and other extraneous efforts you and your attorney may pursue but this is one specific and tangible way in which you can help your attorney best introduce your case.

Court to Katrina Flood Victim: Follow the Rules When Making an Insurance Claim

Published on: October 4, 2010 | By Berniard Law Firm

As many Gulf Coast residents unfortunately know, standard homeowner’s insurance policies do not include coverage for flooding. In order to assist property owners in Louisiana and other states in protecting themselves against floods from hurricanes, tropical storms, and other severe weather, Congress created the National Flood Insurance Program (NFIP) in 1968. NFIP offers flood insurance to homeowners, renters, and commercial property owners in communities that participate in the NFIP. In order for a community to be eligible to participate, it must agree to adopt and enforce certain building standards that are designed to reduce the risk of flood damage. According to the NFIP, flood damage is reduced by nearly $1 billion each year as a result of the floodplain management standards implemented by these communities. Also, structures that are built to NFIP standards experience approximately 80 percent less damage annually than those not built to the standards. The Federal Emergency Management Agency (FEMA) manages the administrative functions of the NFIP, including the claims process. As one Katrina victim recently learned, homeowners who file claims under the NFIP must closely follow the rules contained in their policies.

Violet Collins, a resident of New Orleans, maintained a flood insurance policy through the NFIP to cover her house and its contents. The structure was insured for $225,000 and the contents for $12,500. When the home sustained flood damage during Hurricane Katrina, Collins contacted FEMA to provide notification of the damage. FEMA sent an adjuster to her house to inspect the damage and arrange for payment from FEMA. Collins later submitted additional documentation for damage that the adjuster had overlooked, and FEMA issued her two more checks. Some time later, Collins filed a suit against the NFIP which alleged that the payments on her flood claims were insufficient. The NFIP filed a motion for summary judgment on the basis that Collins failed to file a proof of loss as required by the insurance policy and was therefore barred from seeking additional money. The district court granted NFIP’s motion, and Collins appealed.

After reaffirming that it must “strictly construe and enforce” the flood policy’s requirements, the Fifth Circuit Court of Appeals asserted that “an insured’s failure to provide a complete, sworn proof of loss statement, as required by the flood insurance policy, relieves the federal insurer’s obligation to pay what otherwise might be a valid claim.” Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir. 1998). The court noted that, ordinarily, the proof must be submitted within 60 days of the loss, but that FEMA extended the window for Hurricane Katrina claims to one year. Nevertheless, Collins never submitted any proof of loss; the court examined Collins’s arguments for why she was not required to file one. Her first argument was that FEMA had waived the requirement altogether, a contention that the court quickly dispensed with by citing well-settled case law on the same question. Second, Collins asserted that the NFIP waived the filing requirement in a letter she received from an insurance adjuster. However, the court concluded this was not possible because “federal regulations provide that no provision of the policy may be altered, varied, or waived without the express written consent of the Federal Insurance Administrator,” which was not given. Finally, Collins argued that because she suffers from a debilitating eye disease, she was excused from observing the filing requirement. In response, the unsympathetic court stated that “Collins, however, fails to explain why Louisiana tort law would apply to her claim for flood insurance proceeds or why, if applicable, this would exempt her from our precedent requiring strict compliance with the … proof-of-loss requirements.” Accordingly, the court affirmed the district court’s dismissal of Collins’s suit.

This case serves as a reminder that, even in the aftermath of such massive natural disasters as Hurricane Katrina, flood victims are still expected to follow the specific requirements of their NFIP insurance policies when seeking payment for flood-related losses. Although it may seem cruel to reject a flood victim’s appeal for a fair pay-out, the courts have put policyholders on notice that they will not entertain requests to alter the terms of the policies. For this reason, victims of any flood should seek the help of a qualified attorney who can help them navigate the steps required to fully collect on their flood insurance policies.

Legal Rights Under the ASR Hip Replacement Recall

Published on: October 2, 2010 | By Berniard Law Firm

When people undergo surgery to repair an injured joint or body part, they hope that life will return to as close to “normal” as possible. Despite the fact that surgery is an extensive process that can be taxing mentally and physically on the patient, people obviously expect the best due to the amount of time, money and pain that goes into it. When thousands of DePuy ASR hip recipients began to experience problems with their implant, the idea that another surgery to remedy the matter was likely the last thing they had to hear. However, with a recall in full swing for the tens of thousands of people who received the ASR hip implant, this is the unfortunate reality.

This blog has covered the extensive details relating to this matter because it stands as a clear example of a company attempting to maintain the semblance of success while secretly knowing the truth about their product. Reports indicate that as early as 2007 DePuy, and its parent company Johnson & Johnson, became aware that there were problems with the implant, yet waited until 2010 to issue a recall. What’s more, this is not the first implant the companies were forced to recall. This fact is crucial because it lends credibility to patient complaints that the companies failed in their duty to provide a safe and well-manufactured product.

Left in the dark about the problems relating to their implant, recipients now ask what their options are. Representing a variety of patients who have experienced problems, our firm is now accepting clients who are suffering problems with their DePuy ASR hip implant. Whether suffering from limited mobility, increased pain, a lack of flexibility, metal-on-metal grinding or several other symptoms of a failing implant, patients whose replacement has gone awry are entitled to damages. Even those who have already undergone corrective surgery to fix complications relating to their implant can pursue a case against DePuy and its parent company Johnson & Johnson.

Symptoms of Recalled, Faulty DePuy Hip Implant Can Be Too Much For Recipients to Handle

Published on: September 30, 2010 | By Berniard Law Firm

The DePuy ASR Hip System, which has recently been deemed unworthy of use and subsequently recalled, has caused thousands of individuals severe pain, discomfort, and difficulty performing daily tasks that were once easy to carry out due to its failure. Lawsuits have been filed against Johnson & Johnson and their unit DePuy for numerous claims including negligent design and the manufacture of a defective product that has caused severe damage and injury. Individual complaints have included pain, swelling, and difficulty walking for years after the DePuy ASR Hip System is implanted. This is deeply troubling, since over 93,000 individuals have received the ASR implant, and now 12-13% are experiencing considerable problems. These numbers indicate that thousands upon thousands of individuals who relied upon a successful implant have suffered difficulties and problems related to the DePuy hip implant.
The majority of plaintiffs in the lawsuits against Johnson & Johnson and DePuy claim significant medical problems associated with the ASR Hip System. The stories of the affected individuals are upsetting due to the severe hardships they have encountered as a result of having a surgery that was intended to help and not hurt them. For instance, one woman who underwent the hip operation in 2006 began to instantly experience severe hip pain, preventing her from standing for long periods of time or even sleeping comfortably. Further, her hip dislocated twice within a two year time span. After consulting her physician, she was advised to get a corrective surgery, called revision surgery, to completely remove the DePuy ASR Hip System. After she received the corrective surgery, it was discovered that she was suffering from severe metallosis which happened as a result of the metal on metal DePuy implant rubbing against itself and causing friction. This friction, in turn, created metal shavings that deposited in the metal socket of the device as well as her surrounding soft tissue. This condition can make revision surgery difficult for the operating physician and, thus, creates a danger for the individual receiving the operation. Additionally, it was discovered that the metallosis caused detachment of and degeneration to her hip abductor muscle. The fact that she experienced pain, discomfort, and a constant fear of further surgery for over three years illustrates the serious impact the DePuy Hip System has had upon individual’s lives.
Significantly, the revision surgery is necessary for 1 out of every 8 individuals who have received the DePuy ASR Hip System. However, many report that the pain from having the initial surgery and complications due to the implant is not completely solved by having the second corrective surgery. Many individuals, post revision surgery, require a cane or walker to get around and may experience trouble moving or bending at the waist. Thus, the pain and difficulty performing everyday activities continues as a result of having the initial DePuy implantation.
If you have received the DePuy Total Hip System, and have experienced pain and discomfort, contact the Berniard Law Firm. You do not have to go through this ordeal alone. The Berniard Law Firm will provide the best advice and guidance and is fully capable of meeting your litigation needs.