Articles Posted in Product Liability

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The U.S. Judicial Panel on Multidistrict Litigation has decided to create three new multidistrict litigations (MDLs) for all vaginal mesh lawsuits.


These lawsuits involve products manufactured by American Medical Systems, Inc. (AMS), Boston Scientific Corp. and Ethicon, Inc. The new MDLs will be centralized in the Southern District of West Virginia, where litigation over Bard Avaulta mesh systems is already consolidated.

According to an order issued this week, all four vaginal mesh MDLs will be assigned to Chief Judge Joseph R. Goodwin.

Recently, a growing number of lawsuits over problems with vaginal mesh and bladder sling products have been filed against manufacturers of the medical devices, which are used transvaginally to treat pelvic organ prolapse (POP) and female stress urinary incontinence (SUI).

The complaints allege that design defects with the mesh products can cause women to experience painful and debilitating complications, such as infection and erosion of the mesh through the vagina.

The FDA has issued warnings about an increasing number of adverse event reports associated with the products. In July 2011, the FDA issued transvaginal mesh warning, indicating that they have been unable to find any evidence that transvaginal mesh kits used for repair of pelvic organ prolapse provide any benefit over other available means of treatment.

There are currently about 84 AMS vaginal mesh lawsuits pending in 19 federal district courts throughout the United States; 23 Boston Scientific pelvic mesh lawsuits pending in 14 different district courts; and 37 Ethicon or Gynecare mesh lawsuits pending in 22 different district courts.

All of these cases will be transferred to the Southern District of West Virginia, where Judge Goodwin will preside over pretrial proceedings. Judge Goodwin was assigned to the three new MDLs, as he already presides over more than 330 Bard Avaulta mesh lawsuits that have been transferred to his court since that MDL was formed in October 2010.

Each of the vaginal mesh MDLs will be kept separate, because they involve different manufacturers. Putting all of the litigation before one judge will help reduce scheduling conflicts, eliminate conflicting pre-trial rulings and serve the convenience of the witnesses, the parties and the courts.

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According to medical experts, a medical study underway is expected to reveal that side effects of metal-on-metal hip replacements can cause genetic damage, which could lead to an increased risk of cancer.


According to the U.K.’s Telegraph newspaper, a study to be presented next month at the British Hip Society conference will include findings that suggest the metal particles released by the grinding of metal-on-metal hip replacements could cause chromosomal changes, which may lead to kidney cancer and bladder cancer.

The findings are the latest nails in the coffin over the safety of the once-popular hip implant designs. These hips have been the subject of massive recalls and product liability lawsuits filed by individuals who allege that they are subject to failure within a few years after surgery.

The most likely cause of the genetic damage is metal debris made up of cobalt and chromium, which is released into the body when metal hip implant parts grind against each other. The particles have been linked to tissue damage, tumors, high metal ion blood counts and metal blood poisoning, known as metallosis.

DePuy Orthopaedics, a division of Johnson & Johnson, already faces a massive number of metal hip implant lawsuits. In August 2010, a DePuy ASR metal hip implant recall affected 93,000 implants worldwide and about 40,000 sold in the United States.

Approximately 3,500, of those victims who received the implant in the U.S. have already filed a DePuy ASR hip lawsuit. As more hip implants fail over time, the number of people filing product liability claims against manufacturers is bound to increase.

Recent data from the National Joint Registry for England and Wales indicates that nearly a third of patients will experience problems within six years and other estimates suggest that as many as half of all individuals who received the recalled hip system may eventually experience loosening or failure of their implant.

In May 2011, the FDA asked device manufacturers to obtain more information about the level at which the metal particles released by hip replacements becomes dangerous, how much metal they actually release and what the potential side effects of metallosis are.

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The litigants in the federal NuvaRing litigation are scheduled to meet with the Court to discuss a plan to settle the lawsuits filed by women who allege that they suffered serious blood clot injuries from side effects of NuvaRing birth control.


All NuvaRing lawsuits filed in federal district courts are consolidated for pretrial proceedings as part of an MDL, or multidistrict litigation, which is centralized before U.S. District Judge Rodney W. Sippel in the U.S. District Court for the Eastern District of Missouri.

NuvaRing is a ring birth control device that releases a combination of etonogestrel and ethinyl estradiol and is inserted into the vagina once a month.

The complaints all involve similar allegations that Merck and their Organon Pharmaceuticals subsidiary failed to properly research the birth control ring or adequately warn about the risk of blood clots from NuvaRing.

Plaintiffs claim that they have suffered injuries after taking NuvaRing birth control, including deep vein thrombosis (DVT), pulmonary embolism, heart attacks and strokes.

Following a status conference last week, the Court issued an Order that directed the parties to be prepared to discuss a preliminary plan for alternative dispute resolution at hearing set for February 28.

In January the Court ordered the attorneys to submit proposed plans for alternative dispute resolution, which would be designed to assist the parties in negotiating a potential NuvaRing settlement agreement.

While attorneys for the plaintiffs submitted a plan that calls for the appointment of a special master to oversee the negotiations, attorneys for Merck and Organon have suggested that it is premature to consider such efforts.

The parties are currently preparing a handful of lawsuits, known as “bellwether” cases, for early trial dates. The cases are designed to help the parties gauge how juries are likely to respond to certain evidence that will be introduced throughout other cases in the litigation. In complex pharmaceutical litigation, the results of such trials often factor heavily into settlement negotiations.

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Plaintiffs from Louisiana have filed a lawsuit against Pfizer that alleges the drug maker intentionally hid the link between their popular antidepressant Zoloft and congenital birth defects when the drug is taken by pregnant women.


The two Zoloft birth defect lawsuits were filed in January in the U.S. District Court for the Eastern District of Louisiana by Terry and Nelda Rolling and Joseph and Meg Mitchell.

The complaints involve children born with congenital birth defects after the mother’s use of Zoloft during pregnancy.

Many families have filed a similar Zoloft lawsuit against the drug maker, with allegations that use of the antidepressant during pregnancy caused children to be born with a variety of birth defects and malformations.

Zoloft (sertraline) was introduced by Pfizer in 1991 for the treatment of depression, obsessive-compulsive disorder and anxiety. By 2007 there were nearly 30 million prescriptions, making it the most prescribed antidepressant in the United States. Zoloft belongs to a class of drugs known as selective serotonin reuptake inhibitors (SSRIs).

In recent years, medical research and adverse event reports have indicated that side effects of Zoloft use during pregnancy may increase the risk of serious and potentially life-threatening health problems, including persistent pulmonary hypertension in newborns (PPHN), spina bifida, heart defects, lung defects, abdominal defects and cranial defects.

Studies have suggested that Zoloft may increase the risk of birth defects when used as early as the first trimester of pregnancy, a time when many women do not even know they are pregnant.

Recently, Swedish researchers published a study suggesting a link between PPHN and all SSRI antidepressants.

The lawsuits allege that data was available to Pfizer as early as 1996 that suggested their SSRI antidepressant may increase the risk of problems for children when taken during pregnancy, yet the drug maker failed to provide adequate warnings to consumers or the medical community.

By 2007, the lawsuits claim, Pfizer knew or should have known that Zoloft and other SSRIs doubled the risk of septal heart defects when taken by pregnant women due to another New England Journal of Medicine study that year. Those results were confirmed in a 2009 study.

The lawsuits allege that Pfizer willfully failed to warn consumers of the risks in order to maximize profits, resulting in a negligent breach in its duties to the medical community, users of their medication and their unborn children.

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A wrongful death lawsuit has been filed against ALZA Corporation by the family of a Utah woman who died in 2010, after using one of the company’s fentanyl pain patches.


The fentanyl patch lawsuit was filed by the family of Janine Ward last month in Salt Lake City’s 3rd District Court. The complaint names ALZA Corporation, a subsidiary of Johnson & Johnson, as a defendant.

According to the claim, the fentanyl patch, also known as a transdermal patch, was defectively designed and leaked fentanyl gel when applied to Janine Ward’s skin.

Johnson & Johnson, ALZA’s parent company, first developed the first pain patch as the Duragesic patch in 1994. Since it was introduced, the fentanyl patch has been associated with manufactured problems and many wrongful death lawsuits filed by families of individuals who overdosed on fentanyl.

Fentanyl is a painkiller about 100 times more powerful than morphine, and poses a severe risk of overdose and death if the gel contained within the patch leaks out and comes into direct contact with the skin of patient or caregiver.

The gel in the patch is supposed to be contained and delivered in a regulated fashion through a membrane placed on the skin. Over the last several years the FDA has received hundreds of reports of fentanyl overdoses and deaths associated with the use of fentanyl pain patches.

In many of the cases, too much of the fentanyl was delivered through the skin due to manufacturing defects. There have been a number of fentanyl patch recalls due to defective manufacturing.

According to Ward’s family, that is what s killed her in May 2010 after using one of the patches. A toxicology report found she had lethal levels of fentanyl in her blood at the time of death.

The lawsuit claims that ALZA used a reservoir design that failed to protect Ward from a potential overdose. According to the complaint, the death may have been avoided if ALZA had used a much safer matrix design; technology the plaintiffs say was known to the company.

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A Texas plaintiff has filed a federal complaint against Biomet Orthopedics over problems with their M2A Magnum metal-on-metal hip replacement system, which she says failed shortly after being implanted.


The complaint was filed by Carol St. Cyr in January, alleging that the Biomet M2A Magnum hip replacement she received was defectively designed and manufactured.

According to allegations raised in the product liability lawsuit, the metal head and acetabular cup of the Biomet hip replacement grindr against each other, causing premature failure and leading to metal blood poisoning from cobalt and chromium fragments; a condition known as metallosis.

St. Cyr, 69, received the Biomet M2A Magnum hip replacement in May 2009. Shortly afterwards, she began to suffer groin and hip pain, problems walking, sitting and standing, inflammation and other complications.

According to experts, as the metal hip replacement parts rub against each other, microscopic particles of cobalt and chromium may be shed into the body, which can result in metal poisoning. This may result in soft tissue damage, inflammatory reactions, bone loss, asceptic fibrosis, local necrosis and other problems that may lead to the need for a risky hip revision surgery.

Concerns about the safety of all-metal implants increased in 2010, after a DePuy ASR metal hip recall was issued due to higher-than-expected failure rates. More than 90,000 of the recalled implants were sold worldwide before the problems were acknowledged by the manufacturer, and hundreds of individuals in the United States have filed a DePuy ASR hip lawsuitafter experiencing complications with the implant.

In addition to DePuy and Biomet, a number of other artificial hip manufacturers also make all-metal implants, which have also been the subject of similar product liability lawsuits.

In May 2011, the FDA asked device manufacturers to obtain more information about the level at which the metal particles shed by hip replacements becomes dangerous, how much metal they actually shed and what the potential side effects of metallosis are.

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The plaintiff lost the trial of a Levaquin lawsuit. The man suffered two ruptured Achilles tendons after taking the popular antibiotic.


The jury determined that the drug maker failed to adequately warn consumers and doctors of the risk of tendon damage from side effects of Levaquin.

A Minneapolis jury ruled that Johnson & Johnson failed to provide sufficient warnings about the risk of Levaquin tendon ruptures, but found that the company was not responsible for injuries suffered by the 78 year old plaintiff.

Clifford Straka could not prove that his injuries were caused by the antibiotic.

According to the lawsuit, Straka’s doctor had been unaware of the risk of tendon ruptures when she prescribed Levaquin because there was not adequate label warning.

Although there has been information about the potential risk of tendon damage on the drug’s label since it was first approved by the FDA in 1996, Straka alleged that those warnings were insufficient and that the drug maker actively attempted to downplay the risk for years.

FDA Black Box Warning

In July 2008, the FDA required that a “black box” warning be added about the side effects of Levaquin and other similar antibiotics, which is the strongest warning that can be placed on a prescription medication.

3,700 Lawsuits Still Pending

Straka is one of more than 3,700 people who are pursuing a lawsuit over tendon damage from Levaquin. All of the federal cases have been consolidated as part of an MDL, or multidistrict litigation, which is centralized in U.S. District Court for the District of Minnesota.

This trial was considered a “bellwether”, as the parties were using the results to gauge how juries are likely to respond to similar evidence in other cases and possibly help the parties reach a Levaquin settlement agreement.

This is the third straight trial win for Johnson & Johnson and the fourth to go to trial.

In December 2010, the first trial ended in a $1.8 million award for the plaintiff, including punitive damages to punish the drug maker for their conduct.

The drug maker successfully defended the second trial, which ended in June 2011, and the third trial, which ended in October.

The first two trials were held in federal court. The third trial was held in New Jersey state court, where about 1,900 of the cases are currently pending.

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According to a Johnson & Johnson lawyer, J&J properly warned of the risks of its antibiotic Levaquin and shouldn’t be held liable for tendon injuries sustained by a 78-year-old man.


Clifford Straka, tore two Achilles tendons after taking the drug for pneumonia, sued J&J and its Ortho-McNeil Pharmaceutical unit in 2008. Straka said his doctor wasn’t aware when she prescribed the drug that Levaquin was linked to an increased risk of tendon damage in elderly patients.

Johnson & Johnson denies liability

Johnson & Johnson, has denied any failure to warn and contended that Straka needed Levaquin to treat the pneumonia.

According to Johnson & Johnson, “The label from day one in 1996 was adequate.” “The information was out there and available to the doctors and everyone else.”
Levaquin Lawsuits

The lawsuit is the third federal case to go to trial in Minnesota alleging J&J and its unit, now known as Janssen Pharmaceuticals, downplayed the risks of the antibiotic to boost sales.

J&J lost the first, a jury verdict for $1.8 million in 2010, and won the second last year. The company also won the first state case in October, when a New Jersey jury rejected the claims of two plaintiffs.

Levaquin Tendon Ruptures

J&J is facing more than 3,700 claims involving Levaquin in state and federal courts.

FDA Warning

In 2008, the U.S. Food and Drug Administration required all makers of antibiotics in Levaquin’s class, called fluoroquinolones, to increase warnings about tendon ruptures.

The jury of 7 women and 5 men have begun deliberating.

The case is Straka v. Johnson & Johnson (JNJ), 08-05742, combined for trial in In re Levaquin Products Liability Litigation, 08- md-01943, U.S. District Court, District of Minnesota (Minneapolis).

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Product liability lawsuits against generic drugs are facing a tough uphill battle, which usually ends in dismissal, as exemplified by the Fosamax update below.


U.S. District Judge Joel A. Pisano, has dismissed claims against Watson Pharmaceuticals, the manufacturer of generic versions of the popular osteoporosis drug. Plaintiffs had alleged that their generic version of Fosamax caused femur fractures to develop suddenly, with little or no trauma at all.

Following a court order on January 17, Watson Pharmaceuticals has been dismissed as a defendant in several Fosamax lawsuits. These were filed by plaintiffs who suffered an atypical femur fracture after taking generic versions of the drug.

Pliva v. Mensing

The order comes as a result of a recent Supreme Court decision in Pliva v. Mensing, which allows generic drug makers to be shielded from liability for failure to warn about harmful or even deadly side effects of medications they make, since FDA regulations require that their products must carry the same warnings as the name-brand versions.

The complaints against Watson raised similar allegations to those that have also been filed against Merck, the manufacturer of the name brand version of the medication.

In these cases, plaintiffs allege that the drug makers failed to adequately research the side effects of Fosamax or provide adequate warnings to consumers of the medical community.

FDA Warnings for Fosamax

In October 2010, the FDA required new warnings about the risk of bone fractures from Fosamax and other similar bisphosphonate medications.

Merck and generic Fosamax makers now warn consumers that they should seek immediate medical attention if they experience new groin pain or thigh pain while taking the drug, which can occur weeks or months before a complete Fosamax thigh bone fracture.

All federal Fosamax lawsuits over femur fractures have been consolidated as part of an MDL, or multidistrict litigation, which is centralized before Judge Garrett E. Brown in the U.S. District Court for the District of New Jersey.

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According to St. Jude Medical Inc. its Riata defibrillator leads have a higher failure rate than was disclosed when it stopped selling the product.


Riata has an insulation failure rate of 0.63 percent, more than the 0.47 percent disclosed last December, according to a recent warning letter to doctors.

Extractions of Riata leads were linked to two patient deaths and a serious injury. Devices with the flaw, caused when the insulation surrounding the wires is penetrated, may also fail to deliver electric shocks when needed, the company said.

Different Medical Study Failure Results

Other studies showed higher failure rates. An Irish medical center found 15 percent of patients had wires protruding from the insulation when they underwent fluoroscopic screening, an advanced imaging technique. A German study of 357 patients found 8 percent needed surgery after a failure with a Riata lead. Both sets of researchers recommended closer screening for patients.

What are Pacemaker Leads?

Leads are flexible wires threaded through veins to the heart muscle that help defibrillators deliver jolts of electricity to shock hearts back into rhythm.

Recommendations to handle the defective product?

According to St. Jude, the implications of the insulation failures aren’t clear, and they advise doctors to continue routine monitoring of patients with Riata leads.

The wires shouldn’t be automatically replaced, and there is no consensus on treatment even for patients with damaged leads who aren’t suffering electrical malfunctions.

Fluoroscopic screening recommended

Researchers have urged fluoroscopic screening of patients with the Riata leads, since the complications can trigger shocks when they aren’t needed and failure to administer a shock when the heart stops beating properly.

Defibrillator patients are between a shock and a hard place; they need the device to perform when needed, otherwise they die, but they do not like unnecessary shocks, which is extremely painful.