100% natural cancer

“Natural” foods and products seem to be all the rage these days.  Buzzwords like “organic,” “free range,” and “gluten free” convey a sense of health and superiority to other products.  But not all natural products are good for you.

Talcum powder on black background

This is not the powder you’re looking for.

Talc in talcum powder is a naturally-occurring mineral, similar in composition to asbestos. Research suggests, however, that talc may be linked to ovarian cancer.  Two recent cases against Johnson & Johnson in St. Louis found that they knew about the risk of ovarian cancer and never disclosed it.

What does this mean to you:

Interestingly, talcum powder is not regulated by the FDA, as other products are, but the makers should still warn about its potential dangers.  I guess talc is not considered a drug.  Or, you know, a food.  What I’m saying is, don’t eat talcum powder.

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The hidden cost of tort deform

General Motors knew that its ignition switches were faulty but allowed people to continue to drive Chevy Cobalts and other cars for years.  To date, 49 of those people have died in crashed related to the defective switches, and many more suffered horrific injuries.

burningcar

However, many families of these innocent victims have not been able to obtain justice.  Many states, including Ohio, place a limit on the amount of compensation injury victims and their families can get under the guise of “tort reform.”  As pointed out in this recent New York Times piece, it simply becomes too expensive to bring a case, in light of what the law allows to be recovered.  Said another way, by the time experts are hired to prove the case, the value of the injuries and suffering is not enough to obtain a successful result.

In fact, Ohio even takes the added step of cutting off the right to bring a case after the product is 10 years old.  This “statute of repose” applies even if it is defective and dangerous and even if the manufacturer knew of the problem.

What does this mean to you:  

No one would dispute that frivoulous lawsuits have no place in our legal system. The dispute is, what constitutes “frivolous” and who gets to decide?  Politicians or a jury of your peers?

Take a moment and repose yourself

Most people are familiar with a statute of limitations, a law that gives you a certain amount of time to bring a claim starting from the date of the injury.  That makes sense, since you know when you are injured.  A “statute of repose,” on the other hand, is a limitation on the amount of time starting from the date a product is made, whether you have been injured yet or not.

Seeking enlightenment

What makes these laws – such as Ohio’s law – particularly vicious is that they can cut off the ability to file a claim BEFORE THE INJURY HAS EVEN HAPPENED.  One a product had been made – whether that’s a medical device like a hip implant, a smoke detector, or a baby’s high chair – after 10 years, no claims can be made against the manufacturer.

What does this mean to you?

Not surprisingly, Ohio’s statute of repose has been described as “a victory for manufacturers.”  If manufacturers won, who lost?  And by the way, how does this make products safer?

In addition, Marlboro will sponsor the Komen 5k race

Mark Twain once said that golf is a good walk spoiled.  Truth be told, I  tend to agree with him.  But people nonetheless seem to enjoy the activity, whether they’re out strolling the fairway or going for the long ball.

hip

Hopefully, then, the irony was not lost this week when it was announced that the PGA Tour would be sponsored by – wait for it – Stryker Orthopedics.  Yes, that Stryker Orthopedics.  The one that made 20,000 defective ABG II and Rejuvenate metal hip implants.  The ones that would be bad for golfers (or anyone else who likes to, you know, move) to use.

What does this mean to you:

Remember that advertising and corporate sponsorship can be as much about framing and creating a positive public image as about selling products.

Testing, schmesting.

You would think that medical devices  implanted inside your body would be some of the most highly-tested products in the world.  Not so, though, for hip implants made by the Stryker company, who began selling its hips without going through clinical trials first.

science experiment

Stryker claimed its hips were similar to DePuy’s metal on metal hips that were already for sale.  The fault in this logic, if you can call it that, is that DePuy’s hip implants are the ones having problems with fretting and corrosion of the metal, which causes pain and swelling.  This defect may even lead to metalosis – metal toxicity in the blood stream caused by metal ions and shavings from the implant itself.  This, despite the fact that the industry has known for some time that as much as 40% of metal-on-metal hip implants would fail.

Stryker has since recalled its Rejuvenate and ABG II hip implants.  DePuy has since settled many of the claims against it for $2.5 billion.

What does this mean to you:

Someone with a recalled hip implant probably does not know the make or model they have.  If an implant patient continues to have, or suddenly develops, pain or swelling around their hip implant, they should check with their surgeon right away.

The itsy, bitsy baby climbed out of the high chair

I saw this story in the Columbus Dispatch today noting an increase in the number of injuries to babies caused by high chairs.  On average, 9,400 kids are hurt every year due to high chairs – a number that has been on the rise.

Baby in highchair

To be sure, some injuries were caused by children climbing out, while other are related to defects in the chair itself.

What does this mean to you:

Always register your baby products with the manufacturer so you are kept abreast of recalls.  Or, you can sign up to receive alerts from the Consumer Product Safety Commission.

 

Defeating Assumption of Risk

Just a quick post to say that I recently wrote an article for the Ohio Association for Justice on the defense of assumption of the risk in product liability cases in Ohio.  For those that are interested, you can read it here.

 

And now we wait

A jury in New Jersey has begun deliberating on one of the first trials involving surgical or transvaginal mesh.

waiting

The outcome of this early “bell weather” trial will impact how the mesh manufacturers approach the thousands of remaining cases where women suffered bleeding, infection, pain, and urinary problems from the mesh implants.

 

What does this mean to you:

Though it may seem distant and unrelated, early trials in cases like this can have massive legal ripple effects for the remaining individual claims.

 

We don’t know what we – I mean, you – are talking about

Baby Boomers appear to be here to stay.  I mean, they even have their own Association now, so you know they’re going to stick around and ask for stuff.  Stuff like hip implants that don’t fail after being implanted, causing pain, swelling, and metal on metal friction to throw off chromium and cobalt ions in to their blood streams.  Some people!  For what it’s worth, the medical research surrounding metal ions is ongoing, but as far as I know, no doctors have started prescribing chromium and cobalt ions to be taken once daily by mouth along with your Flintstones.

Doh!

But, the maker of many hip implants, a company called DePuy (pronounced “Dapew”) who is owned by Johnson & Johnson, knew for quite a while that its ASR hip implants were failing.  It was recently learned that, rather than tell the FDA of the product’s defects, or make a change to its design, or immediately recall the device, DePuy opted merely to not make any more ASR hips, but continue to sell the problematic hips it had remaining.

What does this meant to you:

Many times, patients may not know the brand or model of the particular implant they have.  That is, a person may have a DePuy ASR and not even know it.  If you’re having problems, its important to check with your doctor to see which type you have, and if need be, discuss it with a lawyer.

The system works just fine, thank you

Natalie Barnhard was working a fitness center as a trainer when a defective weight machine tipped and fell on her, crushing her vertebrae, and rendering her quadriplegic.  Because the manufacturer denied all responsibility for its machine, Natalie pursued her case to trial, where the jury returned a verdict in her favor.  The manufacturer appealed the verdict.  Even though a  jury of her peers had heard the case and already decided the amount she was to receive, the court of appeals in New York slashed the amount of money Natalie could receive.  The ability for courts to, in effect, overrule a jury and reduce the award is called remittitur, and varies from state to state.

Natalie’s injuries happened back in 2004.  Just last week, after making $43.1 million in just the fourth quarter of 2011, the manufacturer of the machine finally settled with Natalie.

What does this mean to you?

So why even bother pursuing a case if they just drag it out?  In our legal system, individual people and their lawyers have the ability to hold the wealthiest companies responsible for their wrongdoing.