DePuy itself does not have a list of patients that received the defective hip which makes it difficult to reach potential users.  Instead, those who received the defective hips are receiving letters from their surgeons informing them of the recall.  The best available evidence suggests that the product is “metal-on-metal”, which causes metal shavings to release into the body and cause significant pain and possibly blood poisoning.  In addition, the metal grinding causes the socket to become dislogdged from the hip, causing significant pain alleviated only by a follow-up surgery.  It doesn’t appear that DePuy will have any strong defense to the claims, but rest assured that the claims process will be difficult, lengthy and time consuming.

The Warshafsky Law Firm is currently handling several DePuy products liability claims and intends to seek maximum compensation for those affected.  If you or anyone you know has received a letter from your surgeon regarding the recall, please feel free to call the Warshafsky Law Firm regarding your possible claim.

Also Ordered to appear is Dr. Gene Musser, Chairman of the Wisconsin Medical Examining Board. He has been ordered to explain the details of the investigation by the Board, and what information the Board still needs to complete its investigation, should it request additional information.

The show cause Order has many implications beyond this particular case.  Presumably, the Board will now have to explain the reasons it may take upwards of 10 years for it to discipline a doctor found to be negligent.  It will also have to explain the steps it takes and the timeframes involved in its investigation of Wisconsin doctors accused of malpractice.  Some predict that what is lingering behind is the scenes is a Board that wants to protect its own doctors.  Other predict is simply a case of budge constraints and the limited capabilities of the Board.  Either way, the Order will allow the public a glimpse at how Wisconsin doctors are disciplined, and hopefully provide more transparency for patients to choose skilly doctors.

Both Kelly Sankbiel and Dr. Gene Musser will appear before Milwaukee County Circuit Court Judge Thomas Cooper on August 13th, 2010 at 10:30 A.M to respond to the Order.  The hearing is open to the public.

In 2004 Ken Plants filed a medical malpractice action against Dr. Cully White alleging Dr. White operated on the wrong side of his spine, causing severe and permanent nerve damage.  The lawsuit also alleges Dr. White billed for a surgery ($7000) he did not perform and subsequently lied to Ken Plants about the surgery.  The lawsuit settled in August 2009 for 2.9 million.  Ken Plants refused a confidentiality clause that would have made the terms of the settlement confidential.

The writ targets the Medical Examing Board, which has the responsibility to “investigate allegations of unprofessional conduct in a reasonable time.”  Despite hand delivering every possible piece of evidence to the Board, the Board has not provided Plants or his attorney with investigation materials, or even if the investigation has begun.  The writ demands the Board do the following: 1) provide the petitioner with the Board’s report generated in this matter; 2) if not report has not been generated, an update on actions in furtherance of a report; or 3) how the Board intends to complete its report and when.

This Writ follows an interview with ABC 12 last Fall where the Board admitted that it takes 4, 5, or even 6 years for the Board to take any action following settlement or trial involving medical malpractice.  A typical medical malpractice case takes about 3 years to settle or go to trial.  It then takes 4-6 years before the Board takes any action against the doctor.  Essentially, it could take upwards of 10 years before a doctor is disciplined by the State of acts of negligence.  Prospective patients have absoulutely no way of knowing a doctor they are choosing is being investigated during that 10 year period. The writ appers to force the Board to provide greater transparency and actually carry out the Wisconsin statutes aimed at protecting the citizens of Wisconsin.

The CPSC (Consumer Product Safety Commission) recently recalled the dart guns to prevent further sale of the item and further asphyxiation deaths.  Interestingly enough, it appears that Family Dollar was the company that worked with the CPSC to see the item to recall - not the manufacturer nor the distributor.  While noble, this does not absolve Family Dollar from a Wisconsin products liability action.  In Wisconsin, every person or entity in the chain of distribution is liable for the defective and unreasonable dangerous product.  This includes the manufacturer, the distributor and the end seller.  Allowing the injured party to recover from anyone in the chain of distribution has two positive effects on consumers: 1) it increases the likelihood that there will be a party to recover from in the event the product in manufactured overseas or by a defunct company; and 2) it makes end sellers more cognizant of the products they buy, thereby eliminating or reducing the ”junk products” that make their way to consumers.

Products liability actions are often very difficult to prove and also very expensive.  They often require hiring an expert to state that the product is defective and unreasonably dangerous.  They also require an expert doctor to opine on the injuries or death of the injured party. 

Although the injuries are different, this product recall is eerily similar to the MTD Recalls I have previously written about on this site and am currently handling for the Warshafsky Law Firm.  Both involve a defective product recalled by the CPSC that remains in the general public causing injury to users.  Those injured by defective products should contact an attorney experienced in handling products liability actions immediately to preserve their rights.

These MTD products liability claims are very unique in that the injuries are usually limited to broken hands and fingers.  The limited damages make these claims very difficult, if not outright cost prohibitive, for a firm to handle.  For example, suppose the claim is worth around $30,000.  It may cost upwards of $15,000 to hire a plastics expert to provide a favorable opinion.  After a fee and recouping costs, the claim is hardly worth pursuing for the client.

The Warshafsky Law Firm has handled close to nearly 10 claims against MTD and is currently working on at least 5 others, most from referring attorneys.  Bunching these MTD claims together to spread-out the costs has been effective in maximizing recovery for the client.  As the snow melts around the country, these claims may melt away as well.  But history as shown us that these products are still out in commerce and are still exploding at alarming rates.  If you or anyone you know has been injured by MTD products, Warshafsky Law Firm is interested in hearing about your experience.

I thought we would stop seeing these cases as the product faded from the marketplace, MTD sent out replacements and consumers stopped using the product.  However, reports of injuries from these MTD products are continuing to arise even though we are 4-5 years post-product recall.  The Statute of Limitations for a negligence and/or product liability claim such as these is 3 years from date of injury.  So, assuming the product was recalled in 2006 and manufactured even earlier, consumers still have a claim against MTD for 3 years from date of accident.  Whether the injured consumer owns the MTD snowblower, rented the MTD snowblower or even borrowed the MTD snowblower, the injured party should contact an attorney immediately to assist them with their claim against MTD.

If you or someone you know has an MTD snowblower that falls within the scope of the CPSC recall and the product has not yet exploded, I urge you to contact MTD to discuss getting a replacement before someone gets injured.

A plaintiff’s attorney accepting any malpractice case must be prepared to outlay upwards of $50,000 in costs to see the case to trial.  This, along with countless attorneys’ hours, is the true price of bringing a claim that, statictically speaking, juries dont like.  Defendant doctors, or more accurately, their insurers, typically do not negotiate settlements until the eve of trial, if ever.  This means the plaintiffs’ must endure the cost of hiring expert after expert and be prepared to bring that expert into to court.  Together, these factors make the “minor” medical malpractice claims impracticable to pursue, and the major cases a huge risk for the Firm.  In larger, complex cases, the $750,000 cap can work towards making a claim financially unfeasible for the attorney and client if the price tag of experts becomes too costly.

Attorneys “dabbling” in plaintiffs medical malpractice should be very leary of these realities when screening potential new cases.  The Warshafsky Law Firm employs a full-time M.D./J.D to do medical malpractice new case screenings and reviews.  Unfortunately, having a Doctor or Nurse on staff has almost become a necessity to practice plaintiffs medical malpractice given the tough litigation climate.

The scary aspect for consumers is that claims are down in Wisconsin likely because of litigation truths, not because Wisconsin residents have enjoyed an increased standard of care from physicians and hospitals.

The provision would allow plaintiffs lawyers to deduct the up-front expenses of pursuing contingency-fee lawsuits, even in cases where the lawyer is expecting to be reimbursed for these expenses. The IRS currently considers these costs a loan from the lawyer to his client, and like other taxpayers, the lawyer can only deduct the loan if it isn’t paid back.

Mr. Rangel’s spokesman says, “This is purely a matter of fairness and tax equity. The individuals who would benefit from this provision are already eligible to deduct expenses related to contingency-fee lawsuits, the only question is when.” Not exactly. Attorneys who snare a percentage of the recovery plus expenses today receive no deduction. Allowing these big deductions now would mean that future reimbursements are taxed, but with some monster class-actions, the lawyers could avoid the tax bill for a decade or more.

Simply put, this Bill would allow Firms that operate on contingency fee agreements to deduct costs and expenses on an on-going basis rather than taking one big deduction at the case’s conclusion should the case not be successful.  Firms can take yearly deductions for “costs and expenses” that if at case resolution are recovered, are treated as income for the recovery year.  To me, this seems to put Firms on the same level as other small businesses.  Take the deductions on a yearly basis and treat their recovery as income when the Firm recovers. The current status of costs as “loans” is not accurate, as Firms do not charge interest to the client.  One thing is certain, the tax consequences of this Bill for Firms big and small is gigantic, especially in the realm of class-actions.

However, the WI decision should not be a surprise to any lawyer.  When the U.S. Supreme Court directly addresses an issue and rules concisely in one direction, no one should expect a state to head the other direction.  Some members of the Court feel the Courts’ hands were tied:

Two concurring justices — Walsh Bradley and Chief Justice Shirley Abrahamson — criticized the U.S. Supreme Court decision but said they must follow it. The decision leaves Wisconsin residents’ safety in the hands of the flawed FDA, Walsh Braldey wrote.

She cited a letter from FDA scientists released last month that charged “the scientific review process for medical devices at FDA has been corrupted and distorted by current FDA managers, thereby placing the American people at risk.”

“It is not at all apparent that the FDA approval process actually guarantees a minimum level of safety for medical devices,” Walsh Bradley wrote.

Sometime this term, the U.S. Supreme Court is expected to rule on a similar pre-emption issue involving giant drug manufacturer Weyth.  A ruling in favor of Weyth would prevent patients injured by prescription drugs from holding manufacturers liable for putting dangerous products on the market if those products are previously approved by the FDA.

The We Energies explosion apparently involves Waukesha based ThyssenKrupp Safway, a subcontractor providing scaffolding services.  It also apparently involves United States Fire Protection, a New Berlin firm that provides fire protection services.  Injured workers may have possible claims against both companies depending on their employer and who ends up being the at-fault party.

Coal dust explosion are very difficult cases to figure out, let alone prove.  Coal dust explosions are often the result of negligent 3rd parties that are unfamiliar with the inherent dangers of coal dust.  Everybody surrounding the We Energies site must use reasonable care in handling coal dust, and must also use reasonable care to warn of the risk associated with working around coal dust.  What is “reasonable care” depends on many factors, including opinions held by workplace experts.