Recently, the New York Times released an article that provides the public with information that Johnson & Johnson, the parent of DePuy Orthopaedics, never felt it necessary to provide to the general public. Given the ongoing litigation, Johnson & Johnson was required to produce various documents to be used at trial. Thank goodness the court ordered production of these documents, unsealed, because now the public can learn what Johnson and Johnson has been hiding all of this time.

There is currently a trial expected to begin in Los Angeles, California. In light of the trial setting, a document reveals:

In pretrial testimony, Paul Voorhorst, DePuy’s director of biostatistics and data management, said that the company performed several reviews of A.S.R. failures in patients in fall 2011, a year after it recalled the model. Based on the number of patients who had already undergone device replacement at the time, DePuyestimated that about 37 percent of patients who got an A.S.R. might need to have it replaced within five years of receiving it.

The New York Times article reveals that these particular metal-on-metal hips failed at an alarming rate – 3 times the rate of other artificial hips. What’s worse, Johnson & Johnson knew that the failure estimates of the DePuy ASR XL Acetabular Systems and DePuy ASR Hip Resurfacing Systems were likely grossly inadequate. When the products came out, DePuy Orthopaedics and Johnson & Johnson insisted that the failure rate of their DePuy hips was between 12 and 13 percent (12-13%). The Johnson & Johnson internal analysis conducted in 2011 (shortly after recalling more than 90,000 artifical hip systems) reveals that the metal-on-metal systems would fail within 5 (five) years in nearly 40 percent of all patients. What patient would voluntarily choose a medical product with a 40% failure rate? What doctor would recommend such a system? What’s more, the internal reports reveal that the company estimates many, many more patients, in addition to the 10,000 already affected, will experience a failure of their DePuy hip system in the future.

While the FDA has ordered that all manufacturers conduct in-depth studies of metal-on-metal hip replacement systems. The problem is, the FDA stops there – it allows each manufacturer to decide how to conduct the study rather than dictating parameters. We need the FDA to become more involved in protecting the public and directing the studies and research performed by manufacturers of products that are placed in the market for human use. It is natural for us to rely upon the expertise of our doctors when they tell us that we need medical care and also trust those doctors when they recommend various medical devices and products over others. However, our trust is misplaced when the doctors themselves are not fully educated as to the risks associated with the products, as is the case here with the DePuy hip replacement systems.

In response to the overwhelming evidence, according to Bloomberg News, Johnson & Johnson has offered to pay $2 billion to settle this matter. This is an unconfirmed report.

This is another example of how injury trial attorneys can help benefit the public. The obvious way we help the public is by helping individuals recover for their injuries caused by the negligence at the hands of another. But we can also help the public as a whole. The plaintiff attorneys involved in the DuPuy hip litigation have not backed down. They suspected that there were documents that the public had never seen and they were right. By bringing this litigation to the court system and now to the forefront of the news, Johnson & Johnson and DePuy Orthopaedics will have to answer for their actions, or lack thereof.

Lindsay Rakers, trial attorney

As with most things, when it affects Hollywood, the rest of the world hears about it. Lately, we have been hearing how SWAT teams have been swarming homes of the stars following calls purporting to report emergencies. Chris Brown, a R&B singer, has been the latest victim. Tom Cruise, Ashton Kutcher and Justin Bieber have also been targeted.

Swatting has hit close to home in St. Louis County, Missouri incident recently. A local police department was called regarding a home invasion. Several officers were sent to the reported address only to find that the family was safe and that the call was a video game prank gone wrong. Luckily no one was hurt in this incident but that isn’t to say that will be the case next time. A popular video game, Call of Duty: Black Ops, has been under fire lately for what appears to be a ridiculous feature of the game. The game permits other players (worldwide) to talk to each other in chat rooms via headsets. The chat room is susceptible to hacking into the players’ personal information. In Lewisville, this video game feature led to guns drawn on a home in February of 2012. The hacker managed to obtain personal information about the child player and then call the Lewisville police using a hearing impaired service. The hacker reported that someone was shot and that the offender was still inside the house. Again, luckily no one was hurt. This is not what our police forces are trained for. I can’t imagine how scared the family was when the SWAT team showed up.

The FBI (Federal Bureau of Investigation) has picked upon this new phenomenon. The FBI discusses the seriousness of calling 9-1-1 authorities and faking an emergency. The FBI reports incidents of claimed bomb threats at sporting events, armed visitors at hotels, threats against public parks, fake home invasions, etc. With the recent rash of violence we continue to hear about in the news, this is scary stuff. As always, the authorities have to take such calls seriously and respond with sufficient manpower and force, if necessary. Imagine the potential complications if SWAT forces are sent to the residence of a claimed home invasion when in fact, nothing is wrong. Imagine, too, the danger these callers are placing our police officers and other agencies in. Of course, if the police resources are being used for a fake call, what if a real emergency occurs? What if the departments start hesitating when calls come in – wondering if it is real or fake?

I remember when I was young, the thing to do was to call a pizza delivery service and send a pizza to a friend’s house. Man, kids got in a lot of trouble for doing that – it wasted employee time and resources and then the receiving individual usually had to pay! But that was nothing compared to this. These hoax callers need to go back to the good ol’ days where callers innocently prank their friends.

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In Hillsboro, Keith Buehler, a 17 year old drunk driver, was charged with two counts of involuntary manslaughter and possession of an illegal synthetic drug, after he allegedly ran a red light this past summer, killing two individuals. Crash investigators determined that the teen was driving between 81 and 90 miles per hour in a 55 mile per hour zone when he struck the car of Raymond and Carolyn McClean. Both were killed instantly, and Buehler suffered severe injuries. Buehler had a red light at the time of the accident.

All states have now lowered the legal blood alcohol concentration (BAC) from .10 to .08, and have zero tolerance for any individuals under 21 with alcohol in their blood system. Roadside tests can further determine if the driver is under the influence of any other intoxicating substance that may be undetectable to the officer’s BAC measuring devices. Penalties for driving under the influence have increased too, with some state legislatures requiring mandatory jail time for repeat convictions, increased length of license suspension, and longer waiting periods for hardship licenses.

Although laws differ from state to state, the nature of driving under the influence remains the same. No one who drinks should get behind the wheel and drive; the potential of injuring yourself, or those on the road, is much too great to risk. Many taxi providers, tow companies, and other car services, are available for those would-be drunk drivers. If you are going to drink, plan ahead, and make sure you, and all those around you, get home safe, and sound.

Lindsay Rakers

1. Your personal status at the time of injury:

Were you hurt at the VA? If you received the negligent medical treatment from a federal employee, and it is not “incident to your service” (such as your role as an active military member), or it is not an elective procedure.

2. The status of the negligent individual:

The individual performing the action must be a federal employee, acting under the scope of his employment, and cannot be an independent contractor or other individual working within the government facility.

3. The place where the negligent action occurred:

The injury or negligent action must have occurred at a domestic federal facility.

If your injury or the individual’s negligent action meets all three of the above criteria you may have a viable suit against the federal government. Filing a claim against the government can be administratively difficult and require you to meet certain time deadlines and filing requirements in order to proceed with your case. Contacting a FTCA attorney that specializes in cases against government doctors will ensure that your claim is filed appropriately and provide you the greatest chance of recovering your damages.

If you would like additional information about the Federal Tort Claims Act, I found this website to be helpful. Feel free to call me at 800-817-0602.

Learn more about medical malpractice generally here and here.

Lindsay Rakers

The right to file suit comes from a temporary waiver of sovereign immunity, stated in the FTCA as follows:

“The United States is liable . . . in the same manner and to the same extent as a private individual under like circumstances, but is not liable for interest prior to judgment or for punitive damages.” 28 U.S.C. 2674.

“Federal courts have jurisdiction over such claims, but apply the law of the state “where the act or omission occurred.” 28 U.S.C. 1346(b)

The FTCA covers situations such as slip and falls in government offices or property owned or maintained by the government, car accidents or truck accidents caused by government employees, and medical malpractice (doctor negligence) commited by the doctor of a federal agency such as the Veterans Administration (a VA hospital or other medical facility).

When filing a claim under the FTCA there are certain guidelines you must follow in order to pursue a successful administrative claim. You must:

1. File within two years;

2. Include all the facts and monetary damages in your claim;

3. After agency response (six month period), you have an additional six months to file a proper lawsuit; and

4. Depending on the disposition of your claim, you may then sue if ruling from agency is not in your favor.

The administrative burden, as well as the complexity of filings, typically calls for the assistance of a licensed attorney to ensure that you are provided the full compensation for damages you deserve. If you, or someone you love, has been injured by the carelessness of a government employee, or in a government building, contacting a FTCA attorney is the first step towards pursuing a suit under the FTCA.

Lindsay Rakers

In fact, this happens more than we think it does. NHTSA (National Highway Traffic Safety Administration) estimates that these “back over” accidents kill 228 people a year with 110 of them being young children. In addition, these back over accidents injure another 17,000 people per year. This is not an isolated incident.

In response to Cameron’s death, in 2003, New York Representative King introduced the Cameron Gulbransen Kids and Cars Safety Act which was widely supported and signed into law by President Bush on in 2008. The law requires the Secretary of Transportation to issue safety standards to lower the number of child injuries and deaths. All passenger vehicles are to:

(1) have power windows and panels that automatically reverse direction when there is an obstruction;

(2) have rearward visibility permitting the driver to know if there is a person behind the car; and

(3) have a system requiring the brake to be engaged to move the car and while the key is out of ignition.

Most cars now have #1 and #3, although not all of them. But where are the required backup cameras? It is an easy fix to #2. The auto industry has what they need to get going but has complained of the cost. NHTSA estimates that adding a rear camera to a car with a display screen already built-in would cost around $80 – $200 for those cars without a dashboard display screen. Some cars have standard features, not related to safety, that cost a heck of a lot more than this. Why isn’t the Department of Transportation requiring the auto industry to plow forward with this law? Here we are in 2013 and the rearview visibility issue has still not been addressed. I suspect most car buyers would not mind paying $80 for such a safety feature. Even more so, I suspect the public would rather the auto industry remove a non-safety feature and include the back up cameras.

Regardless, the Kids and Cars Safety Act is a fantastic bill but it does no good becoming law without implementation. NHTSA and the U.S. Department of Transportation need their feet held to the fire. We love our kids, let’s protect them.

As a personal injury lawyer, I have represented countless numbers of individuals who have been injured. When I speak with my clients, I tell them not to talk to anyone but me. I try to educate the public on what to do in case they are ever in a car accident. I educate people to remain calm, to not speak with the other driver, to take photographs of the damage, to try to remain still if injured, to not walk around if in the middle of a roadway, to call police, to obtain insurance information. All of these things make the victim better prepared to make a claim, if needed.

You would think after over 10 years of doing this, I would know what to do when it happened to me. Well, I am a horrible car accident victim. I did not sit still in case I was injured – I immediatelly hopped out of the car (during both crashes) and assessed the damage – even though I was in the roadway where I could be hit again. I yelled at the other drivers – telling them how careless their actions were. I didn’t take photographs. I was argumentative with the police, even though I had no reason to be. And I have to tell you, when it came time to make a claim with the insurance companies, I didn’t have the best case! The at-fault driver was able to say I was walking around the scene just fine. The police officers, while supportive of me regarding fault, said I was argumentative. I had created an uphill battle for my legal case, no doubt about it. Don’t get me wrong – the fact remained that I was not at fault for either crash. But had I followed my own advice, things would have been easier.

I also felt connected to Eric’s closing paragraph. Safety first - absolutely. Eric tells us about how he was told as a child to never stop his car on a bridge, even if the tire was flat. To stop a car on a bridge would be very dangerous. Instead, he was told to just keep driving the car until he was able to pull over in a safe location. Now, most of us have heard many times to never drive our car on a flat tire – it will ruin your beautiful rims! But what’s worse? Leaving your family in the car while you get out to check the tire and being struck by another vehicle? Worse yet, your family being struck by another vehicle? Eric is right. It is just a car. This is why we have insurance. So before you worry about saving a piece of tin, protect yourself and drive out of danger.

#klindsayrakers

Anaplastic Large Cell Lymphoma (or ALCL), can develop throughout the body, and rarely, in the breast. ALCL is diagnosed in about 1 out of every 500,000 women a year, with ALCL in the breast diagnosed an average of 3 out of every 100 million women a year in the United States. Among the millions of women with breast implants, 60 cases of ALCL have been reported, with a small number of other cases reported by groups outside of the FDA’s purview.

With the media exposure now surrounding this rare form of cancer and it’s potential link to breast implants, consumer watch dog groups are pointing to the FDA as not providing an adequate warning to women regarding the risks of silicone breast implants, and that women seeking breast implants should have been turned away due to the dangers of silicon. Even with the media onslaught, the FDA continues an advisement of normal check ups, and awareness of warning signs including swelling, pain, lumps, or asymmetry. They have yet to warn women regarding the removal of their implants due to anaplastic large cell lymphoma. The FDA states that silicon implants are safe and effective when used properly, but are continuing to look into this potential link.

Lindsay Rakers, Illinois accident attorney, Missouri accident attorney

A recent commercial ran by the Institute for Legal Reform highlights Blitz, a bankrupt Oklahoma gasoline can manufacturer, who had to shut down operations due to legal payout from recent lawsuits. Although the 30 second commercial showcases unemployed workers and the shutting down of the corporation, it fails to highlight the complexities of the corporation’s legal liabilities that drove them to that point. In recent years, Blitz has paid out millions to consumers based on injuries sustained while using Blitz’s gasoline cans, refusing to fix a seemingly defective product. The gas cans manufactured by Blitz were linked to “flashback’ explosions caused by vapors outside the can igniting and following the vapor trail back into the container. Blitz has been sued 62 times, with two reported cases of injury in every million gasoline cans sold. Even more shocking is that issues such as flashback explosions were not unknown to Blitz, as evidenced by an internal memo circulated by Rocky Flick, the company’s chief executive, stating his wish list would be that the company “develop and introduce device to eliminate flashback from a flame source.”

Lobby groups such as the Institute for Legal Reform will do their job of pulling at America’s heart strings, but as our country moves forward with tort reform it is important to remember that both Attorneys and the Judiciary have an ethical duty to not represent or hear any such frivolous suits. When an individual is injured due to a defective product, or the negligence of a corporation, it is their right to have their case heard in a court of law and seek the damages they are deserved. The next time you hear of a corporation that is shut down or hindered due to such lawsuits, it is important that you gather all of the facts on the issue before passing judgment on the individuals.

Lindsay Rakers, defective product attorney

I continue to follow the story of little Tripp Halstead and his loving family. The above photo was taken of Tripp the day before his injury. If you haven’t heardTripp’s story, please check it out. The short version is that he was involved in a tragic accident at his day care when a tree branch fell and hit him in the head, resulting in a severe brain injury (TBI).

Although I have been practicing personal injury law in Illinois and Missouri for 11 years now, and have learned more about children with severe injuries than I ever wanted, I have learned so much from little Tripp. I have learned what “storming” is following a traumatic brain injury and how horrible it can be for parents and family to watch.

Recently, tripp has been placed in an upright position to help his feet and legs remember how to walk. He has been wearing casts on his feet and hands to help his feet and hands remember how to hold certain positions. He has swallowed liquid and even turned his head (huge news!). I am amazed by the strength of his parents who have refused to leave his side, who have refused to blame the day care workers who couldn’t have known this would happen, who have refused to give up hope.

Let’s continue to rally around this little guy and his loved ones. Because their state of residence doesn’t require day cares to carry insurance, this family is not receiving an insurance payout. You can imagine how expensive the medical care is and will be, even with insurance. You can also imagine how this toddler needs his parents with him to help him get better. Please donate so that Tripp’s mother can focus on her little boy and stay with him at the hospital, and not have to return to work right now to pay the medical bills.

Happy holidays to Tripp and his family!

Lindsay Rakers, injury attorney