Trial Judge Affirms $8.3 Million Dollar Jury Verdict in First Trial Against Depuy for Recalled ASR Hips

A California Superior Court judge has denied DePuy Orthopaedics’ motions for new trial or judgment notwithstanding the verdict, upholding the $8.3 million judgment that resulted from the state’s first trial of a DePuy ASR hip implant case. The case is Kransky v. DePuy, BC456086, California Superior Court, Los Angeles County.

In March, the jury hearing the DePuy ASR recall lawsuit in California found the ASR hip was defectively designed, and awarded more than $8.3 million to the Plaintiff, Loren Kransky. Mr. Kransky sued the company under the theory that the ASR was defectively designed as well as DePuy's failure to warn his doctors that its product was dangerous. He claimed that the ASR hip caused him to suffer severe side effects, including metal poisoning. The jury found in favor of Mr. Kransky on the design defect claim and in favor of DePuy on the failure-to-warn claim.

During that trial, evidence was introduced which indicated Johnson & Johnson and its subsidiary, DePuy Orthopaedics, had knowledge that the ASR hip product was defective years before the recall was announced. The recall occurred in August 2010. However, that information was not shared with the public at large or the medical community. According to a New York Times report published on April 16th, much of the same evidence was introduced in a second trial that concluded last month in Illinois state court. However, the jury hearing that case found for Johnson & Johnson.

Los Angeles Superior Court Judge J. Stephen Czuleger issued his decision from the bench following a hearing May 24 and has scheduled a hearing in June on the plaintiff’s attorneys’ request for approximately $1.2 million in costs. DePuy submitted its motion for JNOV April 17^th in the corporation’s bid to persuade Judge Czuleger to throw out the verdict. In their motion, Depuy argued that the jury had erred and its verdict was inconsistent.Thus far, there has been no written order.

Judge Czuleger ruled that although there was a "legitimate conflict" in the evidence at trial as to when DePuy knew that its ASR hip implants were dangerous, this did not bar Mr. Kransky's ability to hold DePuy liable for a defectively designed product. The judge also rejected DePuy's claim that the overall body of evidence was insufficient to support Mr. Kransky's verdict, noting that there was "strong evidence" in support of his claim.

Court records indicate that there are more than 11,000 DePuy ASR hip lawsuits currently pending throughout the United States, most of which have been filed in a multidistrict litigation underway in U.S. District Court, Northern District of Ohio. The first trials in the MDL are expected to begin in September 2013. That date is subject to change as the first bellwether case has been continued already this year. The ASR MDL is titled In re: DePuy Orthopaedics, Inc. ASR Hip Implant Products Liability Litigation – MDL 2197.


Our firm is currently investigating claims for those people who have been implanted with the DePuy hip replacement devices, both ASR and Pinnacles. If you would like a free case evaluation, please contact Chris Hellums at toll free 1-866-515-8880 or at chrish@pittmandutton.com.
 

Manufacturer and Implanting Physician of Vaginal Mesh Found Liable

http://www.businessweek.com/news/2012-07-25/bard-doctor-lose-verdict-over-vaginal-mesh

                Bloomberg Businessweek

Currently, there are hundreds of lawsuits pending alleging that vaginal-mesh implants made by Murray Hill, New Jersey-based Bard, Boston Scientific Corporation and other companies have caused organ damage in women.

A jury in California has recently held C.R. Bard, Inc., manufacturer of the Bard Avulta Plus transvaginal-mesh implant, liable for injuries caused to plaintiff Christine Scott. The devises are used to treat pelvic organs that bulge, or prolapse, or to deal with incontinence. Scott was implanted with the device in 2008 and afterwards had to undergo as many as nine surgical procedures to deal with problems caused by the device.

In her complaint, Scott alleged that the Bard Avaulta Plus vaginal-mesh implant was defectively designed and that the manufacturer had failed to warn about its safety risks. Her attorney produced evidence in hopes of showing the jury that Bard did not properly test the device before putting it on the market. In its ruling, the California jury found that Bard officials knew or should have known that surgeons “performing pelvic-floor repair would not realize the potential risks” posed by the implant. As a result, the jury ruled that Bard was 60% at fault and Christine Scott’s implanting surgeon, Dr. Tillakarasi Kannannan, 40% liable for the injuries Scott sustained as a result of the vaginal-mesh device.

In their verdict, the jury ruled that together, C.R. Bard, Inc. and Dr. Tillakarasi Kannannan are to pay $5.5 million to Scott and her husband. The damages awarded are in order to compensate both plaintiff and her husband for their financial and emotional suffering caused by the vaginal-mesh device Christine had implanted back in 2008.

In an e-mail statement, Scott Lowry, a Bard spokesman, stated that “while we empathize with the complications suffered by the plaintiff, those complications are not the fault of any conduct by the company.” Lowry went on to say that “[the company] believe[s] the evidence establishes that our Avaulta mesh products, cleared by the FDA, are safe and effective and provide significant benefits to patients.”

A 2011 report by the U.S. Food and Drug Administration found that vaginal mesh products should be classified as posing high risk to patients based on a review of side-effect reports from January 2008 to December 2010. In January of this year, in attempt to investigate the safety of vaginal mesh implants, the FDA ordered 31 manufacturers to study the rates of organ damage and other complications occurring as a result of the implants. Both Bard and Johnson & Johnson were included in the manufacturers required to conduct these studies. These studies must be conducted over the period of three years.

Hmmmm: Alabama Athletic Director Not Necessarily Against NCAA Players Begin Compensated

Newly hired Alabama Athletic Director, Bill Battle, recently waded in on the discussion of 
compensating players.  His comments are certain to gain the attention of many.  The reason is that Bill Battle is the founder of Collegiate Sports Licensing (CLC), which he sold to IMG.  CLC is a defendant in the lawsuit brought by former players, including Ed O'Bannon and Tyrone Prothro (represented by me and my firm) regarding the use of their names and likeness.

So, what did Battle say and why is it important?

"I know the conference (SEC) is on record as saying they want a (cost-of-attendance scholarship) stipend for all athletes," Battle said. "I don't see how you can pay one set of some players on a team more than others. The Olympic model might be something where you put money in a trust and it goes to that individual and they don't use it until after they graduate."

"That may be something. I'm for exploring anything. I want people to get their fair market value. But again, (in) our system ... there are a lot of people that are beneficiaries as well as coaches and players and staff members."

In other words, Battle realizes that the dam has broken.  He is uniquely qualified to try and craft a solution and the powers that be in the NCAA would do well to listen to his sage advice.  However, crafting a solution is more difficult that it appears and the NCAA has always taken a scorched earth approach and been slow to change.  

At the heart of the problem is the fiction created by the NCAA of the "student athlete".  That fiction allowed the NCAA to escape workers compensation liability and also allows them to claim tax exempt status---because they are not a commercial enterprise---how crazy is that notion.  Take away the tax exempt status and discontinue their ability to steal and monetize the names and likeness of the players and you just took away the fancy wine, tenderloin steak, and truffles that the NCAA has been living off for a very long while.

Whether the atomic bomb goes off in the O'Bannon case or not, the die has been cast.  There is just too much money being made off the players.  No one knows for sure when the dam will break, but it is leaking like a Katrina levy, and the NCAA would do well to come up with exit strategy, and come up with it fast.  By all accounts, Bill Battle is a man of character and supremely qualified to craft a solution.  Mr. Emmert would do well to seek his advise as to how craft a solution before one gets crafted for him.

Big Victory for NCAA players in claims against EA Sports

Ryan Hart, the quarterback for Rutgers from 2002 to 2005, filed suit in 2009 accusing EA Sports of using his image and likeness in their video games without his permission and without compensation. The lower court threw out his case.  The Third Circuit Court of Appeals in Washington D.C. has reversed that dismissal

Hart’s right of publicity claim against EA Sports was revived last week in a 2-1 decision by the 3^rd Circuit Court of Appeals. The District Court of New Jersey had granted summary judgment in favor of EA Sports in September 2011, saying that EA's use of Hart's likeness was protected as expressive speech by the First Amendment. However, Judge Greenaway, writing for the majority of the 3^rd Circuit disagreed in his recent opinion stating, “We therefore hold that the NCAA Football 2004, 2005 and 2006 games at issue in this case do not sufficiently transform Appellant's identity to escape the right of publicity claim and hold that the District Court erred in granted summary judgment in favor of Appellee.”

In other words, the court said what everyone already knew and as EA advertises "if it is in the game, it is in the game."

The case has been sent back to the District Court for further proceedings. The ruling could affect a number of similar lawsuits that are currently pending, including the O'Bannon lawsuit currently set for class certification this month in California.

More information can be found at these websites:

http://www.usatoday.com/story/sports/ncaaf/2013/05/22/college-athletes-name-likeness-video-games-federal-appeals-court/2349923/

http://www.businessinsider.com/ryan-hart-sues-electronic-arts-2013-5

http://www.nj.com/rutgersfootball/index.ssf/2013/05/former_quarterback_ryan_hart_g.html

The 3^rd Circuit’s full judicial opinion can be found here:

http://scholar.google.com/scholar_case?case=8853182257956538242&q=%22ryan+hart%22&hl=en&as_sdt=2,1&as_ylo=2013

New playoff system means additional money for college football

The newly approved playoff format for college football teams will bring in huge dollar amounts, including over a half-billion dollars per year in television rights alone. The question still remains as to whether or not to compensate college football players. The current Bowl Championship Series in contract with ESPN, and the Rose Bowl’s separate contractual agreement with ABC, together pay the major college football schools around $155 million per year. This money is distributed unevenly with the bigger conferences getting more money for their members; conferences like Big Ten and the Big 12 for example.

Some college football coaches including Texas coach Mack Brown, question whether some of the extra money produced by the new playoff system should be given to the players. After the new semifinal format was approved, Brown tweeted his opinion that “with the amount of money the playoff will generate, I hope we can revisit the student-athlete stipend.” Brown believes that the players are the ones who make the event possible.

Furthermore, the fight over raising student compensation already has begun. While NCAA President Mark Emmert strongly urges against paying football players as if they were professionals, on the other hand, South Carolina’s coach Steve Spurrier has been attempting to do just that for the past two years.

Last year, legislation was approved that would have permitted schools to offer a $2,000 stipend, in addition to a players scholarship. This stipend would have gone towards what the NCAA calls the full cost-of-attendance. However, this idea was put off to the side when over 100 schools asked for an override vote. The schools criticizing the new stipend were concerned with two major issues. First, they were concerned with whether all schools would be able to afford the new stipend, especially in the poor economic conditions. And second, concern was raised as to whether the schools which could afford to pay the extra $2,000 as a stipend would gain an advantage in recruiting.

Despite these concerns, Emmert continues to support the legislation and wants it passed. Additionally, Emmert is in favor of the approval of a new postseason format to take place of the current BCS. “I commend the BCS Presidential Oversight Committee on its leadership to move to a playoff model,” he said. “I remain confident that as the details of the new format are determined in the coming weeks, presidents will continue to keep student-athlete well-being, both in the classroom and on the field, front of mind.”

Concerned with whether schools will be permitted to continue to offer the set number of scholarships to incoming football players, Arizona coach Rich Rodriquez believes that it would be crazy to cut back on scholarships at this point. Teams are being asked to play as many as many as 15 games in a season currently and the therefore Rodriquez thinks that there is no way that universities can be asked to reduce the 85-schloarship limit currently in place. “Any talk about that going forward has to cease,” he said. “You’re going to need more players to get through a season healthy.”

One coach that sees the extra funds in a positive light is Washington State’s coach Mike Leach. Leach has no problem awarding players with larger scholarships and believes that the additional money could go towards doing so. As a result, Leach believes that this would in turn allow for additional opportunities for boys to attend a college university. “Give everybody five more scholarships, five more opportunities for guys to go to school,” he said.

On the other hand, Texas Tech athletic director Kirby Hocutt believes it is too soon to be concern with what to do with the extra money.“I think there’s still a lot of work to be vetting out, and how the revenue is going to be distributed is the first step in that,” he said. “We haven’t gotten that far along in the process but I expect over the course of the next academic year we will do that in meetings.”

Safety and health are two of the most popular reasons that people believe the extra money that will be generated from the new system should be spent on the players. Some former and current athletes have even been attempting to have some of the new funds to be spent on player safety and health.

Safety is the priority of the National College Players Association. This group is an advocacy group comprised of over 17,000 current and former Division I student-athletes. They do not believe that actually compensating the players by paying them with the extra funds is as important as spending the money on keeping the players safe. Former UCLA football player Ramogi Huma and president of the National College Players Association believes that the universities should not be permitted to add extra games to a team’s season without adding extra safety protections to decrease head trauma risks that go along with contact sports.

http://sportsillustrated.cnn.com/2012/football/ncaa/06/27/college-football-playoff-paying-players.ap/index.html

NCAA: From Hypocrisy To Revulsion To Outrage

In the last couple of weeks, we have seen a number of things that should take any college sports fan from hypocrisy to revulsion to outrage.

We learned from USA Today that Mark Emmert is making 40% more than his predecessor, Miles Brand.  Good for Mark. We all love America, apple pie, the flag, and of course, our beloved college sports teams.  We also learned that the NCAA national championship game will be auctioned off to the highest bidding city, which, of course, will generate an estimated additional $155 million in revenue. Finally, we have seen the new EA Sports commercials that allow you to place former Heisman trophy winners on any team in the new game.  Even more money for the NCAA.  You think EA is paying those Heisman trophy winners?  You think they would pay current players or set the money in trust for those players if the NCAA would let them?  You bet they would!

It is a given that the NCAA is synonymous with the term hypocrisy.  It is repulsive that Emmert gets to play king and live large on the backs of college athletes that can't get royalties from the use of their images sold off to the highest bidders by Emmert and his buddies behind the farce called "student athlete", a term of art manufactured by the NCAA.  I wonder if Mr. Bigshot Emmert would have the same opinion if he traded places with Tyrone Prothro for a day, but that is a discussion that has taken place for years.

No, today it is about OUTRAGE, NCAA style.

Ok, here is how it goes.  There is a guy at Penn State.  Got two last names--Graham Spanier.  He likes being a big shot.  He likes to play the Penn State card.  You know the one---we are different.  We do things the right way.  We are not like the SEC.  Same stuff we have been hearing for 150 years.

He is the ultimate NCAA  hall monitor.  He chaired the Board of Directors of the NCAA, chaired the BCS oversight committee and was on the high-level NCAA management council.  He is that nameless, faceless  bureaucrat that we despise and who writes the rules while flying on a private jet somewhere unaware of what is happening on the ground below. As Dan Wetzel of Yahoo Sports describes him, he is the model of self-interest, distorted ethics and misplaced authority.

He railed against reforms that were designed to assist athletes.  His most recent push was for stricter admissions standards that coaching and advocacy groups say will hurt kids from poor performing high schools.

He hammered Curtis Ennis, running back for Penn State.  He declared him ineligible, banned him from Penn State and was publicly shamed by Mr. Two Last Names.  For what?  A new suit he got from an agent.   "He fooled around with the integrity of the university" and "I won't stand for that" Spanier was quoted at the time.  Want us to apply that same standard to you after what has come to light, Mr. Two Last Names?

Don't get me wrong, I am not condoning what Ennis did, but lets compare it to Mr. Two Last Names, who was running a Ted Haggard illusion!

In December of 1997, Spanier learned that Sandusky had been accused of molesting a young boy while showering with him in the Penn State locker room.  Spanier didn't report it because that would not be the "humane" thing to do!  He covered it up.  He wanted to protect his name, the Penn State name, and his Marie Antoinette lifestyle.  We know how it ended for her.  I bet there are some mothers in Happy Valley who think it would end that way for you, Mr. Two Last Names!

Stryker Offers $33 Million to U.S. Department of Justice for Fraudulent Marketing of Knee Systems and Pain Pump Devices

Stryker Corp, headquartered in Kalamazoo, MI, offered the United States Department of Justice $33 million in May 2012 to resolve 2010 allegations regarding a knee device. The company recognizes that this offer is preliminary and it is indefinite as to whether a "resolution will be reached".

A filing signed by interim CEO Chris Hartman stated, "We recently entered into discussion with the DOJ regarding the potential settlement of this matter, and on May 31, 2012, we offered $33 million to the DOJ." The company claimed that the $33 million represented "our best estimate of the minimum of the range of probable loss to resolve this matter."

In 2010 Stryker received  two subpoenas from the U.S. Department of Justice regarding the marketing of its OtisKnee and PainPump devices. These subpoenas, filed with the Securities and Exchange Commission, regarded regulatory matters related to the sales and marketing of the devices that had not been cleared by the U.S. Food and Drug Administration.

OtisMed, a software technology firm, was acquired by Stryker Corp in 2009 for $103 million. As a subsidiary of Stryker Corp, OtisMed focuses on customizable instrumentation that has the potential to complement the many benefits that surgeons and patients realize from Stryker's Triathlon Knee System, as well as other Stryker implants. Simply, the OtisKnee provided surgeons with software that facilitated a 'custom cut' on a patients knee which sought to produce higher success rates of a Total Knee Arthroplasty. This custom cut allowed surgeons to custom fit Stryker total knee devices onto patients knees.