Sudden Acceleration Litigation Moves Forward

Toyota's recent victory in a California sudden acceleration trial is noteworthy.  But it's only good as far as it goes.  The case involved a new theory, relying not on an electronic defect but instead pointing towards the absence of a brake override system.   The incident occurred when a driver crashed into Noriko Uno, which propelled Uno's car into a sudden acceleration.  The jury placed blame at the hands of the driver, to the tune of $10 million, while hearing Toyota's theory that having been hit by a car, Ms. Uno must have inadvertently slammed on the gas pedal instead of the brake.

It's easy to offer opinions after the dust has settled, but one can't ignore that this case was not  an easy one for the plaintiffs.  The plaintiffs faced obstacles  that aren't ordinarily present in the electronic defect sudden acceleration case.   For example, they faced at least three significant challenges:  They have to convince the jury that the driver who crashed into Ms. Uno wasn't too blame; they had to overcome the theory about hitting the wrong pedal; and they had to convince the jurors that this wasn't a defect, but a failure to have the safer override system.  It was a valiant effort. They fought the good fight. And by taking a case that faced such challenges, you have to hand it to them for trying.

But all is not lost for plaintiffs injured as a result of sudden defect acceleration. In November, Toyota heads back to trial, this time in a bellwether case that they selected for trial. The plaintiff's case is the more straightforward electronic defect case. If Toyota loses this trial, it may be time for them to start thinking about a settlement strategy.

A primer on the Stryker hip implant recall

 Stryker hip implant litigation has started to crawl out of from the shadow of DePuy ASR hip implant lawsuits.  DePuy has dominated the press and with good reason: The ASR implants were pulled from the market almost two years earlier than the Styker implants. Because of this, a few of the ASR cases have already gone to trial and more "bellwether" trials continue. Stryker cases may trail in time, but not in importance. The frequency of the inquiries concerning Stryker is on the rise. So, let's cut to it with a Stryker 101 primer for Washington residents and Washington attorneys to get up to speed on certain of the basics.

History:  Stryker Corporation marketed its Rejuvenate Modular and ABG II implants [1]as being the   “latest evolution” of “next generation” hip replacement products. That sounds good. And it sounded good to numerous patients and doctors.  Buzz words sell.

The products were approved via the FDA 510K process. This is the process whereby a company can avoid clinical testing if it relies on a predicate device.  For example, for the Rejuvenate in 2008 Stryker relied on the approved Wright Medical Profemur (which in turn relied on prior predicate products). But, the Wright Medical Profemur has had its own complications: it is facing lawsuits on account of its stem breaking and particle generation caused by fretting and crevice corrosion at the head-neck trunnion joint. So the 510K "approval" only goes so far, and when it comes to safety, these hip cases have become the poster child for serious flaws with the 510K process.

Stryker’s Limited Public Acknowledgement of Problems: Surely problems with the Rejuvenate and ABG II Styker hip implants  had to have  surfaced well before Stryker publicly acknowledged any potential problems. We'll learn more (and hopefully be able to disclose more) as the litigation progresses.  Safety concerns escalated during the spring and summer of 2012. Here's a summary of some of the major events: 

• In April of 2012 Stryker issued an “Urgent Safety Alert” to surgeons for these two hip replacement systems and pointed toward safety hazards arising from excessive metal debris and/or ion generation.” The alert further highlighted other problems that can arise: metallosis (the release of metal ions into the tissue and blood stream); osteolysis (wearing down of the bone); necrosis (premature tissue death); and additional pain and loosening of the hip implant.

• In May of 2012, the Rejuvenate was recalled in Canada.

• In June and July of 2012  Stryker recalled the Rejuvenate and the ABG II in the U.S. on account of fretting and/or corrosion to the implant.  Stryker explained that this could lead to an “adverse local tissue reaction, as well as possible pain and/or swelling in or around your hip.” Naturally, this has had a major impact on those who opted for these Stryker implants.

Are these metal-on-metal?

Lawsuits concerning metal-on-metal hip implants have sprouted  throughout the nation. No longer is the dominant question whether certain metal-on-metal implants will fail. Instead, the focus has been on whether metal-on-metal in itself is the flaw. In other words, it's a matter of when, not if, the metal-on-metal implants will cause problems.  But even if  an implant escapes this gloomy forecast, the person with the implant does not.  Those who have metal-on-metal implants need to continually monitor their cobalt and chromium levels in their blood to see if metal particles have sprouted. All of this raises the question about whether the recalled Stryker models are also metal-on-metal. The short answer is they are not technically metal-on-metal, at least not in the classic sense.  Because they do not contain a metal ball that grinds against a metal socket, Styker's Rejuvenate and ABGII are not considered metal-on-metal devices. But that can be misleading. The Stryker implants suffer from many of the same problems the metal-on-metal implants cause. The classification does not tell the entire story, because  these devices are made of chromium and cobalt, with stems that are coated with titanium. They do have a metal-on-metal junction and they too can  release metallic debris into nearby tissue or into the blood stream.

What should one do if they have a Strkyer hip implant?

The first thing is to go see a hip implant doctor. This can be the doctor who performed the hip implant surgery, but often times it’s just as good – if not better – to go to a subsequent treating doctor.  A new doctor is often  not in any position to defend having chosen the Stryker hip implant in the first instance and might have more freedom from the implant company to give you an unbiased opinion.

If you are having complications or problems from your Stryker hip, you’ll also want to consider promptly consulting with an attorney. The deadlines for filing a lawsuit are strict. Getting this matter to a lawyer as soon as possible is very much in your best interest. For those in Washington State, I’d recommend – naturally – calling my law firm, Schroeter Goldmark & Bender (SGB). At SGB we handle numerous hip implant cases. We attend the latest presentations on hip litigation and strategize as to how best to handle each individual claim. Whichever firm you select, the important thing is to promptly go to a local law firm that handles hip implant litigation. I highly recommend hiring a law firm from the state you reside in.  As a Washington resident, you wouldn't hire a dentist out of Texas. So too with a lawyer: get someone who you can meet with in person. A law firm that can advise you as to whether to file a lawsuit, when to file a lawsuit, and just as important, where to file a lawsuit is critical.  The biggest take away is this: the sooner you consult with a lawyer that handles hip-implant litigation, the better.

As the litigation progresses and as more information becomes available concerning Stryker hip implants, we’ll pass the information along.

[1] These are Stryker Corporation trademarks. They are used here for informational purposes only. Nothing on this blog has been authorized or approved by Stryker Corporation.

Beware the "undefeated" trial lawyer

I recently spoke with a friend  from another plaintiffs' law firm about a topic that is discussed more in private than in public: losing. My friend is an excellent trial lawyer. His firm has  recently lost a couple of very large cases that were hard fought trials. We discussed the take-aways from losing; we reached the conclusion that no matter how talented a lawyer may be, no matter how prepared she is, the bottom line is that losing a jury trial is going to happen from time to time. Show me a trial lawyer who never loses and I'll show you a trial lawyer who is afraid to try the really tough cases. Almost anybody can win the easy cases. I said almost. It still takes some skill to win the so called "slam dunks."  (Naturally, there is no such thing as a slam dunk jury trial; don't let anyone tell you otherwise.)  But it takes a talented and dedicated trial lawyer to win the very difficult cases.  Just like a great athlete wants to take on the best competition, a great trial lawyer wants to take on the most difficult of cases.

Jeff Robinson,a colleague of mine at SGB, is widely regarded as one of Washington State's finest trial lawyers. He presents at seminars and  CLEs all over the country. He's the kind of speaker who draws a large audience, every time: When Jeff makes a presentation on trial skills, attorneys take note.

One thing you won't find Jeff doing is looking to pad his stellar record for trial victories. He's fine with taking on the most difficult cases, ones where others might say he has no business winning. But more often than not he does win these daunting and difficult cases. If trying the case is in the client's interest, Jeff will willingly try it, no matter how difficult an obstacle that might present.

He relishes these type of  challenges. This is how the great ones roll. They don't get great by only taking on the near sure thing cases. How does this translate in practice? When a group of similarly situated executives each come looking for their own criminal defense lawyer, and they collectively ask Jeff which of them he'd like to represent, Jeff's answer is the answer of a confident trial lawyer: "I'll take whoever is in the most trouble." This is the mindset that Jeff and his criminal defense team at SGB embrace.

I write about Jeff in this context because from him I learned this mindset.  Years ago I was fretting about a trial  I thought for sure I'd lose. I discussed this with Jeff and received words of wisdom that all trial lawyers should only be so lucky to receive. Jeff said that for the cases where you have little chance of winning, on the morning of trial, you just need to wake-up early, step outside, take a few deep breaths of the chilled air and say  Sioux leader Crazy Horse's saying: "Today is a good day to die." This doesn't mean that fear has no role in motivating us. It also doesn't mean that you should try to take these types of cases to trial. But when you are in that situation, you have to deal with it.

I did just as Jeff said. The morning of the first day of  trial I rose at 5 am, watched the sun rise over the Puget Sound, took a deep breath and prepared myself for battle. I was pushing to win, but I had already accepted that defeat might near. The process completely relaxed me. Suddenly I was not afraid that we'd likely lose. I turned my attention back towards the task at hand: putting on a first-rate jury presentation. It turns out that we managed to win. We received a verdict that was five times the highest offer the defendant had made to us. The low offer was why we tried the case in the first place. But I'm convinced that the fearless Robinson attitude played a major role in the trial.

Jeff might well have picked up his attitude from playing competitive sports at a high level. Athletes and coaches want to challenge themselves.  At least the great ones do.   Ask any college football coach if he thinks less of the SEC champion because inevitably the champion will have a loss on its record. The answer is "no." Losses make you stronger. The key, though, is to learn from them so that they are the exception. The great ones know exactly how to do this.

Like in life, with trials we learn more from losses than victories. So too with competing:  we learn more from competing than we do from sitting on the side lines.  There's a fantastic Teddy Roosevelt quote I very much like, referred to as  "The Man in the Arena." After I had played my last high school football game, my coach gave each player a frame of the quote.  It couldn't have been more appropriate:  We had won a championship the year before and hopes were high to do it again, but we never even came close.  I keep the framed quote  at my desk and look at it every day.

The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at best knows in the end the triumph of high achievement, and who at worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who  know neither victory nor defeat.

So thank you Mr. Robinson (and President Roosevelt) for that powerful reminder. And to those who have suffered a loss at trial, chin up.  There will be another day to fight. That, my friends, I promise you.

Increased asbestos trials: When companies lose mesothelioma trials, the verdict speaks volumes.

More companies are taking asbestos cases to trial, or so it seems, only to find the results not what they had hoped for. Today's juries often rule against them and in favor of those suffering from asbestos related diseases. Two boiler companies recently learned the hard way when a New York City jury awarded a $190 million verdict against Cleaver Brooks Inc and Burnham LLC. The joint trial entailed five tradesmen who were exposed to asbestos dust and were later diagnosed with having developed mesothelioma. They worked in the steamfitting, plumbing and construction industries. Three of the five had passed away prior to the verdict coming down. (The story was first reported by NYC reporter Julia Marsh who covers the New York Supreme Court in Manhattan.)

This verdict, like others of late, might be indicative of certain trends. First, the asbestos industry is taking more cases to trial. Whether it's a matter of principle, business strategy or rolling the dice, this appears to be the trend. This makes it all the more important that families that hire a mesothelioma attorney must ensure that they have hired someone who can successfully take the case to trial if need be. And second, juries are quite comfortable holding companies responsible for what they did and what the failed to do. This isn't about the so called jackpot justice; these jurors are smart and when they are presented with the evidence they are able to reach the right result. Lastly, verdicts like these are not isolated in the New York area. They are happening all over the country. Considersome recent Crane Co. verdicts, for example. They run from coast to coast.

• March 2013:  A New York jury awards $35 million to an asbestos worker after Crane Co., failed to warn about the dangers of asbestos containing products.

• August 2012:  A Los Angeles jury renders a $32 million verdict against Crane Co. (and rejects Crane Co's argument that it is entitled to the government contractor defense).

There does not appear to be an end in the foreseeable future to the increased number of trials. I predict they will continue, as will the rightfully large verdicts that speak to accountability.

As vindicating as trials often are, we must remember thatno verdict can replace a loved one. No amount of money can take away the pain felt by these families. All we can ask for is that the civil justice system do its job. These companies that needlessly exposed folks to asbestos profited greatly: a verdict is never sufficient, but it does restore part of the balance.

Increased asbestos trials: When companies lose mesothelioma trials, the verdict speaks volumes.

More companies are taking asbestos cases to trial, or so it seems, only to find the results not what they had hoped for. Today's juries often rule against them and in favor of those suffering from asbestos related diseases. Two boiler companies recently learned the hard way when a New York City jury awarded a $190 million verdict against Cleaver Brooks Inc and Burnham LLC. The joint trial entailed five tradesmen who were exposed to asbestos dust and were later diagnosed with having developed mesothelioma. They worked in the steamfitting, plumbing and construction industries. Three of the five had passed away prior to the verdict coming down. (The story was first reported by NYC reporter Julia Marsh who covers the New York Supreme Court in Manhattan.)

This verdict, like others of late, might be indicative of certain trends. First, the asbestos industry is taking more cases to trial. Whether it's a matter of principle, business strategy or rolling the dice, this appears to be the trend. This makes it all the more important that families that hire attorneys must ensure that they have hired someone who can successfully take the case to trial if need be. And second, juries are quite comfortable holding companies responsible for what they did and what the failed to do. This isn't about the so called jackpot justice; these jurors are smart and when they are presented with the evidence they are able to reach the right result. Lastly, verdicts like these are not isolated in the New York area. They are happening all over the country. Consider  some recent Crane Co. verdicts, for example. They run from coast to coast.

• March 2013:  A New York jury awards $35 million to an asbestos worker after Crane Co., failed to warn about the dangers of asbestos containing products.

• August 2012:  A Los Angeles jury renders a $32 million verdict against Crane Co. (and rejects Crane Co's argument that it is entitled to the government contractor defense).

There does not appear to be an end in the foreseeable future to the increased number of trials. I predict they will continue, as will the rightfully large verdicts that speak to accountability.

As vindicating as trials often are, we must remember that  no verdict can replace a loved one. No amount of money can take away the pain felt by these families. All we can ask for is that the civil justice system do its job. These companies that needlessly exposed folks to asbestos profited greatly: a verdict is never sufficient, but it does restore part of the balance.