Hi, Stuart Talley here to do an update on the DePuy Pinnacle metal-on-metal hip trial that is currently ongoing in Dallas, Texas. First, I’d like to let everyone know that we try to do these updates as often as we can. I wish we could do them every day but we have lots of other stuff going on around here. We have other cases, clients and things that need to get done. So, we try to do them as often as we can and we will try to get more videos on the website. But I wanted to let everyone know.
Today, I want to talk about testimony that was received at trial from an expert witness that was put on by the plaintiffs. His name is Albert Bernstein and he is a bio-mechanical engineer. He has 30 years of experience designing and inventing prosthetic devices and surgical tools. He spoke about the process of developing medical devices and what a prudent manufacturer is supposed to do when they develop those devices. He testified that a prudent manufacturer will test the device in human beings before they release it to the public. Before the Pinnacle was released, it was not tested in individuals.
He also indicated that when a manufacturer discovers problems with the medical device that they have an obligation to disclose those problems to doctors as soon as they become aware of them. This is sort of a common sense opinion and I think most people agree. Now, he also went through the “end game memo” that has come up repeatedly in the case. This memo was drafted by DePuy executives and engineers back in the 90s before they designed metal-on-metal hips. The “end game memo” discusses the problems with metal on metal hips back in the 70s. The person who drafted this memo thought that DePuy focus on metal-on-plastic hips and making them better instead of going back to a metal-on-metal design. He discussed language in the memo concerning metal and plastic particles.
He states even though plastic particles can cause osteolysis (destruction of bone tissue), the problem with metal particles is different, and that metal particles can cause more problems in the soft tissue than plastic particles. He described that when you have wear on a prosthetic hip, specifically a metal-on-plastic hip, there will be a certain volume of plastic that will wear on the device and enter the hip joint. It is a very small amount but there is a volume that is measurable. However, when you take the same volume of metal that enters the hip joint you end up with 1.23×10^15 more particles with metal than plastic, an enormous number. This means that when you have plastic wear you will have a few, large particles but when you have metal wear you will have many more, smaller particles. He gave an example with two jars in the courtroom: one was filled with marbles and the other with sand. This demonstrated the difference between plastic wear and metal wear. He also indicated that metal wear is more unpredictable, that DePuy’s testing showed that it was unpredictable, and that the metal particles cause more problems in the hip joint than the plastic particles because the metal particles can enter cells and destroy them.
He also mentioned the defense’s position that back when they were developing metal-on-metal hips there was a debate in the orthopedic community regarding how to eliminate the problem of plastic wear and osteolysis. This is supposedly the reason why DePuy went with metal-on-metal. Dr. Bernstein refuted this contention. He said at the time the Pinnacle was released there was no debate in the orthopedic community. He states the plastic they were using at the time were advanced and they had essentially solved the problem of osteolysis. He pointed to various marketing brochures released by DePuy promoting their metal-on-plastic hips. In these marketing brochures, which were released in 2000, DePuy announced they solved the problem of osteolysis. Dr. Bernstein’s opinion was that the problem of plastic wear was essentially solved but DePuy decided to go with metal-on-metal.
He also discussed specific patients. Defense took the position that the reason two of the patients’ hips had failed was because the cups were put in at an extreme angle. Dr. Bernstein explained that when you are a surgeon and you are putting a prosthetic hip in that you want to put the cup in at the same angle that the natural hip socket was before the surgery. The reason you want to do this is that the muscles, tendons and tissues that surround the hip are designed to deal with a hip at a certain angle. He talked about how 45 degrees would be ideal but not everyone’s natural hip joint is at 45 degrees. There is a variance in the population and as a result hip manufacturers need to design hips that are variable and can match the patients. If they can’t, they need to tell the doctors. He looked at two of the patients’ x-rays and the angles the cups were put in, and he said they were put in at the appropriate angles for that patient. So, it may not have been 45 degrees but if they put it in at 45 degrees it may not have worked. His opinion was that the hips were put in at the right angles, and DePuy, with respect to the metal-on-metal hips, were negligent with the design of the hip and never should have gone with metal-on-metal because that caused the patients’ problems not the angles the cup was put in.
There will be more testimony. The defense will cross examine Dr. Bernstein. We will provide another update when we get this testimony.
Hi, this is Stuart Talley. I am the partner here responsible for the DePuy Pinnacle litigation at our firm. The reason I am doing this video is to answer a question many people have asked us over the years.
We get calls many times from people who have cases on file with other lawyers who are seeking information about the litigation, and about what is going on with their case. It seems that a common problem is people are not getting information about the case, or about the litigation, from their lawyers. We hear people voicing their concern that they’re not able to contact their lawyer. So, I wanted to give some advice on how to deal with that kind of situation.
The first option you should consider is when you call your attorney’s office it’s important that you ask to speak with the attorney directly. Many times paralegals, assistants, or secretaries may not have the kind of in-depth knowledge that you need about your case or about the litigation; ask to speak directly to your attorney. If he or she is not available, ask for their email address. Send them an email. That’s often a very good way to get in touch with your attorney especially on that’s very busy and is often out of the office.
The other option is asking for your attorney’s cell phone number. At my firm, we give all our clients my personal cell phone number and they can reach me when I am traveling or anytime. If you ask for your attorney’s cell phone number at the beginning of the case, they should give it to you. They should be accessible.
If phone calls and emails don’t work, you should send a letter to your attorney explaining that you are not happy with the communication, with the information that’s provided, and you would like more regular updates. Letters almost always get responded to.
Now, if you’ve tried the former suggestions and you’re still not getting a response or getting adequate information, the last resort is that you are always free to fire your attorney. The law in almost every state gives clients the absolute right to change attorneys at any time. If you are not getting information from your attorney and they’re not responding to your inquiries adequately, you can send them a letter indicating you are going to retain a new attorney. Now, almost all states have laws that give clients the absolute right to change attorneys.
Typically, the way it works with fees is that, if you’re on a contingency fee agreement, the new attorney will almost always match the fee agreement of your previous attorney. So, if your previous attorney was charging 40%, the new attorney will charge 40%. This does not mean you have to pay 80%. The laws in almost every state are that if someone changes attorneys the client will not have to pay more in fees. So, the fee will remain the same. The fee will then be divided among your old attorney and new attorney. It will be divided based on the amount of work that each attorney contributed to your case.
If you change attorneys early on in the litigation, and the new attorney takes your case, and works it up and gets it ready for trial (or settlement), that attorney will usually get most of the 40% fee. Conversely, if you change attorneys at the last minute, right before you go to trial, your previous attorney will get most of the fee. It is important to know it will not cost you anything extra. As the client, you have a right to change attorneys. Even if the attorney puts something in their contract that says, “you’re going to have to pay me a fee even if you fire me”, this is not valid to make you pay more than the agreed-upon percentage.
This is my advice to people who call me and are concerned about their attorneys not responding to them. If you have any other questions or concerns, or you want some more advice on what you can do, feel free to give us a call.
Stay tuned. Opening statements started this morning. We will have more updates soon.
Hi, Stuart Talley here to do a quick update on the DePuy Pinnacle trial. We received word from the Fifth Circuit Court of Appeals (COA) on various petitions that DePuy had filed in an effort to up-end the current trial that is set to start opening statements on Monday, October 3rd.
The COA rejected all of DePuy’s arguments and efforts to basically stay the litigation pending their appeals. DePuy made arguments that there was no jurisdiction in the Texas court for people that resided in California. They also made some arguments that consolidating the case was unfair and the speed at which the trial was going to commence was unfair; that they didn’t have enough time to get ready. All these arguments were denied by the COA and opening statements will begin as scheduled.
This is good news for the plaintiffs. Stay tuned. We will provide regular updates on how the trial progresses.
The case is In re: DePuy Orthopaedics Incorporated; DePuy Products Incorporated; DePuy International Limited; Johnson & Johnson Services Incorporated; Johnson & Johnson, Incorporated, case number 16-10845 in the United States Court of Appeals For The Fifth Circuit.
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