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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.

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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.”

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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.”

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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.

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Earlier this month, U.S. District Judge David A. Katz issued an order calling for applications from attorneys interested in serving in leadership roles for the DePuy Orthopaedics hip recall case. On December 7, 2010, Jeff Berniard, the sole principal of Berniard Law Firm in New Orleans, Louisiana, answered Judge Katz’s call by submitting a letter seeking a spot on the integral Plaintiffs’ Steering Committee for the DePuy case. A Plaintiff’s Steering Committee is responsible for making strategic decisions that affect the execution and administration of large scale class action lawsuits. Mr. Berniard will find out if he has been selected for this leadership post sometime soon.

Despite establishing his own law firm only five years ago, Berniard has quickly emerged as a foreperson in complex litigation. The Louisiana attorney, who already has extensive experience representing claimants in complex product liability litigation, has been recognized as an expert in the DePuy Hip Recall lawsuits. He has taught continuing legal education courses on the DePuy Hip Recall lawsuits for Thomson Reuters and he plans on continuing in his role as a lecturer on the topic for as long as the DePuy legal situation continues to unfold. Additionally, Berniard maintains this blog, a website devoted to regularly informing the general public of various issues surrounding the DePuy Hip Recall litigation.

In support of his application to the Plaintiff’s Steering Committee, Berniard pointed to his professional history as class counsel for lawsuits involving toxic torts, Sherman Antitrust, and first party insurance litigation in his letter to Judge Katz. Consistent with Berniard’s varied experience, at least one court overseeing some of his cases praised the Louisiana attorney saying, “This Court finds that Class Counsel are highly skilled attorneys with experience in class action litigation. The substantial settlement amount negotiated by Class Counsel further evidences their competence.” The court further noted that Berniard and his colleagues had devoted “an exorbinant [sic] amount of time [to the lawsuit while] assuming substantial risk that they might not be compensated for their efforts” during the case in question. Combined with his varied experiences in class action lawsuits similar to DePuy, these complimentary observations of Berniard’s past professional successes by the judiciary buttress his assertion that he is a suitable candidate for the DePuy Hip Litigation Plaintiff’s Steering Committee.

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While Louisiana law has not always been a beneficial reliance for residents to fall back on, changes in the last 5 years have helped change that and make financial recovery in the wake of a disaster possible. The previous law in Louisiana stated that, after a fire to a home, the homeowner had 12 months in which to bring a case against the insurance company. A new law passed in mid-2007 extended the period to 24 months. This is a break for many families who felt the impact of such a disastrous event. It will give these individuals and families more time to figure out whether the insurance company’s offer is sufficient. As with every time a new law is passed, there are certain questions that remained to be answered as the situations arise. One such question is how the new legislation impacts those whose claim arose prior to the enactment of the law and had not expired by the time the law was enacted.

In Eric Holt vs. State Farm Fire Casualty Co., such a situation arose for Mr. Holt (Holt). In January 2007, Holt’s home was damaged in a fire. He was insured by State Farm Casualty Co. (State Farm). State Farm refused to pay for any of the damages under the policy. In February of 2008, Holt sued State Farm due to dissatisfaction with its ultimate decision. State Farm filed for summary judgment arguing that (1) the claim was barred because state law, at the time the claim arose, allowed only 12 months in which the claim could be filed for fire damage to a home and (2) the claim was barred because the policy stated that any claim must be filed within 12 months. State Farm argued that because of these two reasons, and the fact that the claim was filed more than 12 months after the fire, the claim is barred by the prescriptive period. The trial court refused to grant summary judgment and State Farm appealed.

In terms of State Farm’s claim that the policy between it and Holt barred any claim beyond a 12 month period, the policy also states that if the policy conflicts with state law, state law will control the issue. The appellate court then had to figure what state law governed the issue at hand. Act 43 of 2007 was enacted On August 15, 2007. The act increased the time in which to bring a home damage claim, including fire damage, from 12 months to 24 months. State Farm argued that because the act was enacted after the damage to Holt’s home, the act did not apply to Holt. Under Louisiana law, the difference comes down to (1) whether the legislature clearly identified if an act will apply retrospectively and (2) if the act does not clearly so state, if the act is substantive in nature, meaning that it creates or impacts a cause of action, it will only apply proscriptively, on the other hand, if the act is procedural in nature, meaning it impacts only how a cause of action can be brought, it can apply retrospectively.

Act 43 does not clearly state whether it applied retrospectively. The Appellate Court concluded that because the act only increased the time in which to bring a claim, and not the type of claim or any elements of the claim, that the act was procedural in nature. Under Louisiana law, it is a well settled issue that procedural acts can be applied retrospectively. The only exceptions to this are that if applying an act retrosepctively (1) impacts a vested cause of action, or (2) revives an already expired cause of action, the retrospective application would violate constitutional rights and would be unjust to apply. However, neither of these exceptions apply in the application of the law in Holt’s case. Therefore, the Court decided that Holt’s claim was not time barred by the prescriptive period.

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 .

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Joint replacement surgery is just what it sounds like: it is the removal of a damaged joint and the subsequent replacing of it with a new, artificial one by an orthopaedic surgeon. Depending on the severity of damage, a surgeon won’t always replace the entire joint. Instead, she may replace or reconstruct only the damaged parts. In either case, the purpose of joint replacement surgery is to improve a patient’s quality of life by relieving pain and increasing mobility.

Allured by the promised benefits of joint replacement surgery, as many as 773,000 Americans have their hips or knees replaced each year. But like any surgery, joint replacement operations carry with it certain inherent risks. Such risks are unique, depending on the patient-type, which is why every doctor should be sure to inform every patient of the risks unique to that individual. If the patient fully understands these risks and is comfortable with them, the patient can consent to the replacement surgery and the operation can move forward.

While some risk is inherent to any surgery, there are certain dangers that are simply uncalled for. A prime example is the product defect manifest in the recalled DePuy ASR hip implants. Unlike medical issues which doctors spend many years studying and training to spot, physicians do not have the engineering expertise necessary to identify latent product defect issues that may exist in a manufactured medical device. Therefore, manufacturers are on the hook when their medical products cause harm to a patient.

One system that may assist doctors in spotting problematic medical devices is a National Joint Replacement Registry. While Sweden, Finland, Norway, Australia and Denmark all have national joint replacement device registries, the United States does not. In a study published in the November issue of the Journal of Bone and Joint Surgery, researchers examined 80,000 total knee and hip joint replacements and 5,000 ACL reconstruction surgeries in a preexisting registry. During the study, the registries effectively tracked and red flagged eight recalls and advisories, allowing doctors to quickly identify affected patients and to respond accordingly. One of the researchers even concluded that a national registry could greatly improve patient safety and provide a basis for future registry research projects that would supply even better outcomes.

Had such a registry been in place, it seems likely that doctors would have been able to realize the danger contained in the DePuy ASR hip implants much sooner, thus preventing implantation in tens of thousands of patients. Unfortunately, such a warning system was not in place, meaning thousands of patients are experiencing complications arising from being fitted with one of DePuy’s defective ASR hip implant units.

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The Honorable David Katz has scheduled a status conference to be held January 20, 2011 at the Paul G. Rogers Federal Building in West Palm Beach, Florida. The purpose of this status conference is to allow applicants for the Plaintiff’s Steering Committee in the DePuy hip recall litigation an opportunity to speak for a few moments in support of their application. As this blog recently reported, New Orleans attorney, Jeffrey Berniard, recently submitted a request for one of these leadership positions.

Berniard says he plans on using the two minutes allocated to him for oral argument to remind the court of his past successes leading other complex litigation, including, but not limited to, suits filed against Cox Communications, Iovate Health Sciences, and Dow Chemical Company. Additionally, Berniard has established his expertise in the DePuy ASR Hip Implant recall matter by lecturing other attorneys in ongoing continuing legal education (CLE) classes held in the Greater New Orleans area, and he wishes to remind the court of this as well.

Since the nationwide recall of DePuy’s ASR hip implants was announced in August 2010, Berniard has continuously accepted new clients to represent in this matter. Moreover, he has maintained this blog, which has effectively informed the general public of the risks associated with the faulty manufacturing techniques of DePuy Orthopaedics. These actions showcase Berniard’s willingness to lead and share his skills with those most affected by the defective medical products.

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In the legal world, one of the most important things to do is to make sure that all necessary documents are submitted to the court, and the opposing party, in a timely manner. The procedural aspect of the legal process has many deadlines that need to be met. The result of not meeting these deadlines could lead to the end of a litigation with no chance of bringing the same claim before court.

In Tapp v. Shaw Environmental Inc., we see an example of the results of waiting until the very last second to bring a claim against parties. Tapp, the plaintiff, brought a claim against a number of sellers and manufacturers of trailers. The basis of the complaint was a fire that occurred, in the trailer, on February 27, 2007. The statute of limitations, the time within which a claim could be brought for this event, was one year. Tapp waited until the very last minute to file a complaint on February 26, 2008. The complaint was literally filed on the very last day under the statute of limitations. On a later date, after the time period to bring the claim had passed, Tapp realized that there were other defendants that should have been added to the original complaint. The problem was that Tapp could not simply file a complaint against these new defendants. Tapp needed to add these defendants by a provision within the federal rules of civil procedure called “relation back.” The “relation back” procedure is like adding defendants to the original complaint as if they were actually on the original complaint. The purpose is to allow plaintiffs to add defendants even if the statute of limitation has expired. The federal rules of civil procedure explain that if the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original complaint, and if there are new defendants, that these defendants are notified and added in the amendment within 120 days after the filing of the original complaint. This provision of civil procedure is a last second, last chance, opportunity to add new defendants. It is by no means the most efficient or effective way of adding defendants to a case.

The complaint filed against the first newly added defendant was filed on June 13, 2008. This defendant executed a waiver of summons on June 25, 2008, which was exactly 120 days after the filing of the original complaint. The Court ruled that, as to this defendant, the federal rules of civil procedure requirements for adding a defendant post-expiration of the statute of limitation had been met. Thus, this defendant was properly added onto the original February 26, 2007 complaint. Another amended complaint was filed adding another defendant on August 8, 2008. Using the same “relation back” procedure, the Court ruled that this newly added defendant was added outside the 120-day period allowed by federal civil procedure. Therefore, this defendant was not added to the case, and thus the plaintiff could seek no relief from this defendant for this claim. Tapp lucked out because at least one of the new defendants was added to the case. However, as this case clearly demonstrates, it is essential that claims are brought as soon as possible within the statute of limitation period, so that if anything needs to be done within the period, it can be done while time still remains to take action.

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.

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