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Archives : 2013 : January
Consumer and plaintiffs lawyers know that there have been a long string of cases where the Supreme Court has enforced arbitration clauses much to the detriment of consumers. In the course of doing that, though, the Court has always said that enforcing arbitration clauses won’t cause any harm, because arbitration is a forum where anyone with a valid legal claim can be heard fairly. The Supreme Court has also maintained that arbitration is only acceptable where parties can “effectively vindicate their substantive rights.”
In In re American Express Merchants Litigation, we’ll learn if the Court actually MEANT any of those promises. This is the most important and most pro-consumer case involving a challenge to an arbitration clause that has come down in several years. In the case, a number of small business merchants brought a class action in court alleging that Amex is violating the Sherman Act with a Tying Arrangement (using its monopoly power over charge cards to force merchants to take all Amex-branded credit cards — and pay higher fees). AmEx moved to force the case into individual arbitration (with no class action possible). The plaintiffs PROVED, with admissible evidence that was never controverted, that it would be impossible for them to pursue their antitrust claims, in court or arbitration, if they had to go forward on an individual basis. It would cost them hundreds of thousands of dollars to prove their cases in each case, even though their claims are typically only worth about $5,000.
But AmEx, backed by the Chamber of Commerce, wants the Court to abandon the “effective vindication” doctrine, or more likely to re-define it in a way that would make it completely meaningless. They want the Supreme Court to enforce AmEx’s arbitration clause, and class action ban, even though it means that small business plaintiffs will lose all their substantive rights under the antitrust laws.
We support the efforts of organizations such as Public Justice which filed an amicus brief objecting to AmEx’s radical position. The brief explains that if the Court severs the link between arbitration and the opportunity to be heard and obtain justice, then statutes that Congress enacted to protect consumers, small businesses, and workers from more powerful corporations will be gutted. As the brief explains, AmEx’s proposal would change the underlying statute from the Federal Arbitration Act to the Federal Corporate Immunity Act, and would rob it of its legitimacy.”
The brief may be found here.
According to The New York Times, an estimated 500,000 individuals have undergone a surgery involving a metal-on-metal hip implant. A quality hip implant is usually expected to last for approximately 15 to 20 years, depending on the patient’s activity level, fitness level and general health.
Many hip replacement patients, however, find that their implants begin to show signs of failure in a matter of a few short years. These patients have begun pursuing legal action against the manufacturers of these defected implants, but they need to first equip themselves with the necessary information before heading to court.
How to Find Out if You Have Been Affected by a Defective Hip Implant
The majority of hip implant patients have become accustomed to chronic pain and stiffness over the course of many years. In fact, these two symptoms are the most commonly cited reasons for the decision to have hip implant surgery in the first place. Unfortunately for many hip implant patients, the familiar pain associated with hip problems before the surgery may never actually improve, particularly if the implant used is defective.
Symptoms of a potentially defective or dangerous hip implant include:
- Noticeable swelling that does not respond to anti-inflammatory medications
- Unusual warmth in the area surrounding the implant
- Difficulty when walking, bending, sitting down or getting up
- Pain and stiffness that do not go away with proper medication and rest
Complications that arise from a defective hip implant may grow to be incredibly serious when not addressed in a timely manner. Corrosion of metal-on-metal components in an implant can allow minute particles of metal into the blood stream and into the tissue at the implant site. Severe cases can lead to tissue death around the implant, dangerously high levels of cobalt and chromium in the blood, and substantial bone loss.
List of Recalled Hip Implants
All hip replacement and hip surgery patients are strongly encouraged to consult their surgeons and medical records to determine what type of device was used during their procedure. Though many surgeons are able to reach their patients with relevant recall information relatively quickly after the information has been made available to them, not all patients are made aware of the potential danger they face. The following is a list of some recalled hip implants over recent years:
- DePuy ASR XL Acetabular Hip System
- DePuy ASR Hip Resurfacing System
- Stryker Orthopaedics Rejuvenate Modular Neck Stem
- Stryker Orthopaedics ABG II Modular Neck Stem
- Smith & Nephew R3 Metal-on-Metal Liner
If you or a loved one have undergone hip surgery and have suffered adverse effects because of the type of implant used, you may be entitled to financial compensation. The statute of limitations for filing a lawsuit concerning defective implants varies from state to state, so quick and decisive action is strongly recommended.
A product injury lawyer is a legal professional with experience in pursuing financial compensation for injuries or death caused by faulty products. Your attorney will help you make the important decisions regarding your case from start to finish, as well as make sure that you are awarded a fair amount of money for your pain, suffering and medical expenses. Don’t allow multi-billion dollar businesses to take advantage of you in your time of need. Even if you have not yet begun to experience side effects associated with your hip implant, it is important to obtain a legal consult immediately in order to ensure that you get the compensation you deserve.
Total hip replacements are performed to treat a variety of conditions affecting the hip joint, including degenerative joint disease, arthritis, congenital hip dysplasia, and physical trauma. Hip ailments are more common in elderly people, but younger people can suffer from these conditions as well. Besides various diseases of the joints, physical trauma usually occurs due to falls, auto accidents, or other acute injuries.
The hip is a ball and socket joint. The hip bone itself has a rounded gap, or socket, which the rounded ball of the femur, or thigh bone, fits into. This type of joint has a lot of flexibility as the joint can swivel in any direction. This is why hips can bend in more directions than knees or elbows, for example. It also makes broken hips particularly difficult to heal, which is why surgical intervention is sometimes necessary to promote mobility.
Types of Hip Implants
- Metal on polyethylene implants. This is the most common type of implant. In this method, both the ball and socket portions of the joint are removed and replaced with a metal prosthesis. A polyethylene spacer is then placed between them. The metal used is usually titanium-aluminum, stainless steel or cobalt-chrome. These implants do wear down over time, so subsequent replacements may be necessary in patients who live a long time post-surgery. A relatively new type of polyethylene is quite popular now due to its strength and durability. These new implants rely on a wear-resistant type of plastic that is manufactured to be stronger than regular polyethylene. Because these implants are new, long-term studies have not been completed to determine whether they will truly wear down more slowly than other types of implants
- Metal on metal implants. These work similarly to the above type, but there is no plastic spacer between the metal elements. This reduces the amount of wear that the artificial hip takes, but it does pose a potential risk to patients due to the release of metal ions into the patient’s bloodstream.
- Ceramic on ceramic implants. These implants use ceramic pieces for the ball and socket portions of the joint. Ceramic is much less prone to wear than metal or plastic, but it can be brittle and prone to breaking.
Regardless of the materials used, the implant will generally be held in place with a special type of medical cement. It may also be wedged into place without cement so that the bone can heal over the implant and hold it in place.
Types of Hip Replacement Procedures
Surgeons utilize a variety of surgical options to address pain experienced by patients suffering from diseases of the hip joints. These options include total hip replacements where an artificial ball, socket, and stem is implanted into the joint to replace the existing diseased or damaged bone. Surgeons may also perform a total hip resurfacing where an artificial ball and socket is implanted, but the stem is very short in length and does not penetrate deep into the femoral bone. A resurfacing procedure is generally less invasive than a total hip replacement. Surgeons may also perform a partial hip replacement, also known as a hemi-arthroplasty, in which only the ball is replaced with an artificial implant. For physical trauma, depending on the extent of an injury, a broken hip can sometimes be healed naturally by limiting a patient’s movement. More serious injuries may require surgical intervention.
A traditional hip replacement surgery requires an incision through either upper thigh or buttocks of the patient. Less-invasive techniques use smaller incisions and specialized instruments to complete the procedure. Regardless of the procedure completed or the materials used, a hip replacement surgery takes time and therapy to recover from. Some complications can arise if the new hip does not form a strong attachment to the existing bone. The patient may also continue to experience pain in the joint long after recovery is over. Fortunately, as technology improves, hip replacement surgeries become more effective.
Stryker is a prominent medical device and orthopedic product manufacturer that supplies hip implants, knee implants and surgical equipment used at major medical centers. Over the past several years, some of Stryker’s products have been recalled due to defects in their design or construction which have resulted in devastating injuries. These defects can make medical products unsafe for their intended use. Under product liability law, a manufacturer is responsible for ensuring that its products meet safety standards and do not pose a threat to consumers. Manufacturers are also responsible for warning patients of the risks associated with their products.
Here are a few of the major lawsuits and recalls that have affected Stryker and unsuspecting consumers across the country.
The Stryker Neptune Waste Management System
Stryker issued an urgent Class I recall for its Neptune series of waste management systems. This recall was issued on June 8, 2012, after the company received reports of serious and fatal injuries. These systems collect fluids during surgery by using a vacuum-like apparatus. When operated at high-pressure, the device can cause serious tissue damage, organ damage and fatal complications. This recall covered all six waste management models in the Neptune series. Stryker is facing a growing number of product liability lawsuits for injuries caused by these dangerous devices. Investigations show that these systems were not approved by the FDA and were not labeled properly.
Stryker Ceramic Hip Recall
In January 2008, Stryker voluntarily recalled its ceramic Trident Acetabular PSL Cup and Trident Hemispherical Cup implants. Stryker’s Trident hip implants were recalled due to contamination at a manufacturing plant. These particular ceramic hip implants were prone to premature failure. A number of patients reported embarrassing squeaking and popping noises during normal activities. These issues are related to ceramic fragments, hip fractures and the loosening of components. Patients who were affected by faulty Trident hip implants are still coming forward, and more lawsuits are being filed.
Stryker Metal-on-Metal Hip Implants
On July 6, 2012, Stryker voluntarily recalled its ABG II and Rejuvenate modular neck stems that are used in hip replacement surgeries. The first product liability lawsuit alleging problems with the ABG II and Rejuvenate neck stems was filed on August 7, 2012. An increased risk of corrosion and metal poisoning were cited as the reasons for the recall. Stryker admitted that the systems were prone to wear and tear near the neck junction. These problems may cause pain, swelling and adverse local tissue reactions. If left untreated, these conditions can lead to aseptic loosening and sepsis.
More than 50,000 defective implants were sold before the recall, and people have begun to file suit. These plaintiffs are requesting a case consolidation that would allow patients from Arizona, Florida, Minnesota and New Jersey to move their cases to New Jersey’s Bergen County Superior Court where they will receive individual trials and settlements. This venue was requested due to the proximity to the Stryker headquarters.
Since 2007, Stryker has received several urgent warnings and complaints from the FDA and the U.S. Department of Health and Human Services. These citations were for failing to test problematic devices and for failing to fix the defects. The company also received multiple contamination warnings. Sterile medical implants were allegedly cleaned and packed in unsanitary areas where microbes exceeded allowable levels.
Between 2007 and 2008, Stryker, DePuy, Zimmer, Smith & Nephew and a host of high-profile orthopedic manufacturers were sued by the Department of Health for engaging in unfair sales strategies and offering unlawful kickbacks to surgeons who directed hospitals to purchase their orthopedic implants and other devices. The FDA has noted several serious design flaws and sterilization issues associated with Stryker’s surgical implements and orthopedic implants. Problems with Stryker’s Duracon, Scorpio and EIUS Unicompartmental Knee Implants have lead to more recalls and lawsuits.
Product liability issues are particularly dangerous when medical devices are involved. Due to the implications of defective medical devices, patients can often sue to recover medical expenses and punitive damages. Victims might also be eligible to request compensatory damages for pain, suffering and loss of consortium.
Stryker Orthopaedics Corporation has issued a voluntary recall on its Rejuvenate Modular and ABG II Modular Neck Stems after post-distribution reports were issued stating that these implants are susceptible to corrosion and/or fretting, which can lead to metallosis, adverse local tissue reactions, and pseudotumors.
Arthroplasty, also known as a hip replacement, is the replacement of the diseased or deteriorated hip joints with a prosthesis to relieve pain and increase mobility and function in the hip. The Stryker Rejuvenate system is a device with a stem and neck designed to replace the patient’s hip by providing a mechanism that allows the joint to pivot as it would naturally. The Stryker ABG II Modular Neck Stem is a product designed to reconstruct the hip joint area by attaching inside the femur and coming out to connect with the hip.
Hip Replacement Risk
Standard risk to patients who receive hip replacements include decrease of bone mass or bone loss, nerve damage, uneven leg length, stiffness, and decrease in immune system function. Revision surgery is usually warranted in cases where the patient is experiencing post-surgical issues such as metal sensitivity, loosening of the implant, audible sounds from the area during movement and general wear over time.
When metal pieces in hip implants constantly rub against each other, corrosion occurs. Unlike true metal-on-metal devices where the ball and socket are both made of metal components, both the AGB II and Rejuvenate products had metal stems and metal necks that rub together in a way similar to how the ball and socket devices do.
When corrosion or fretting occurs in metal hip implants made with cobalt and chromium metals, such as the Stryker Rejuvenate Modular and ABG II Modular Neck Stems, the patient can develop metallosis, a condition where metal debris collects in the soft tissues. This can cause inflammation and swelling, as well as destroy the otherwise healthy tissue surrounding the implant site. With deterioration of the tissue, the implant may become misaligned, causing severe pain, infection, swelling, and dislocations These complications can eventually necessitate a revision surgery.
While hip replacements are designed to withstand up to fifteen years of use, both the ABG II and Rejuvenate replacements began showing signs of failure after several months. This caused excessive post-surgical pain that required revision surgery in some patients.
If metallosis exists, inflammation and swelling of the area around the implant could occur, with some cases of pseudotumors and fluid in the joint. Tissue damage from metallosis can present as a rash in the affected area. An often overlooked sign of metallosis is extreme pain, which many patients dismiss as after-effects of the replacement. Metallosis can also cause the levels of cobalt and chromium metals in your blood to elevate. In some cases, this elevation of metal levels can be toxic and cause many systemic illnesses.
Further side-effects of metallosis include the following:
- Recurring infections
- Gastrointestinal issues
- Emotional imbalance
Patients who have either the Rejuvenate Modular or ABG II Modular Neck Stems should contact their doctor immediately. While not every patient who received Stryker’s ABG II or Rejuvenate products have experienced symptoms of metallosis or product failure, all ABG II or Rejuvenate recipients should contact their doctor.