Howard, I agree with much of what you post.
However, I take issue with the characterization that the problem is in finding “a law firm that has the ability and desire to tackle this huge issue.”
Law firms would love to take on Smith Nephew for your problem, if the status of the laws and FDA regulations were otherwise. The US Supreme Court, in RIEGEL v. MEDTRONIC, INC. has had the last word on this issue.
So what you really should be pushing for is “the victims of the BHR device band together and find” legislators that have “the ability and desire to tackle this huge issue.”
Lawyers are not dodging this job. It is not a job lawyers can accomplish.
Rather, the job that now needs to be done is legislative, given the Supreme Court’s holding in Riegel. We need a change in the law and that will require congressional action and changes to FDA regulations.
Earl's View 
Dear Sir: My apologies for assuming you were ‘one of us’, so to speak, with my question as to what MOM you had implanted (I reference here my reply to your comment left for Mr. Howard Sadwin below his “Howards Lament” post). I must admit that your citing of a specific SCOTUS case, RIEGEL v. MEDTRONIC, INC, did tip your hand somewhat. And in the newer light of your legal link,
http://www.anapolschwartz.com/practices/depuy/,
I am not at all surprised by your carefully constructed commentary.
What strikes me now as hypocritical is your contention that “Lawyers are not dodging this job. It is not a job lawyers can accomplish.” Yet when one follows the link you’ve provided here on Earl’s View, we are taken to the site of ‘Anapol Schwartz of Philadelphia Pennsylvania, [who are] DePuy Hip Implant Lawyers – DePuy Hip Implant Recall Attorneys – [and] NuvaRing Lawyer[s]. So truth be told, counselor, you are currently representing Depuy MOM victims (what one might appropriately label “low-hanging fruit”, if you will).
Legal firms seem to have no problem taking ‘Huge’ legal cases on. But only once the MOM (or other harmful medical device in question) has been recalled, is the sailing smooth enough to justify the risk of the firm’s time (money).
I’m fairly confident that when Smith and Nephew recall their touted BHR products, one might suddenly find that company’s name added to the list of those represented on your web page.
My apology, you are correct, I spoke before I thought. I am still discussing my case with the original attorney. She said the same thing to me. I respect her, she talks the talk and walks the walk, she is an active activast. She is an expert in these matters.
However, the recent recall of a ” plastic part ” by a medical device that was pma approved may open a door, as I asked of an attorney what happens when the MOM hips are taken off the market for failing and causing harm to folks. What about accountability from the manufacturer and our Government? How will the preemption laws be delt with.
Patient harm and medical and legal purgatory are assured by poor federal legislation. Congress gave FDA powers to “approve” devices without clinical testing and Supreme Court gave further entitlement to the medical device industry in Riegel v. Medtronic which gives them pre-emption(no accountability). An act of Congress could overturn SCOTUS decision and Congress could change the charter of the FDA, but aggre$$ive lobbying by the medical device indu$try has repeatedly blocked these legislators from ‘doing the right thing’. Warn the public: their citizen/consumer rights and health have been sold. Waiting for class action lawsuits means that thousands of people have been harmed and financial compensation will go to armies of lawyers.
While it is true that Mrs. Riegel lost, the courts decision was predicated on the ‘rigorous testing procedure'(Pre-market Approval) the FDA employed for our safety with the new and substantially different BHR. So, yes, it doers appear the PMA hurts those whose installed (or now revised) product came to market under that criteria, and I have acknowledged that before as have many others here. My point to Micheal above — and I should have been more specific — was that the BHR THA is a different animal that was rushed through the FDA via the slipshod 510k process. As a result of that distinction, my S&N product is not bound to the SCOTUS decision, and therefore their ruling(in my case) is not “the last word on this issue”.
My point therefore still stands, and there are others who frequent this site that have implants that were 510k’d through and concur. So I can only assume in those cases — that are not ‘slammed shut’ before they can even open due to PMA — that lawyers are in fact dodging a tough job: representing those in the 510k class whose products have demonstrably (and are on hospital THA revision records) poisoned us via metal toxicity necrosis, etc. Those of us who are kindly afforded the privilege of paying again for their metalosis, for the failure of a device that was never placed in a human’s body during their repetitions on a ‘hip simulator’ (where, I might add, S&N remarks that due to the hardness of their oxidized coating, exercising their wonder-product showed LESS metal debris than those with CO-Chrome surfaces. Fantastic)! The reason is as you stated, people are forced to wait for class action lawsuits that become ‘slam dunks’ for lawyers, hence my allusion to low-;lying fruit.
No excuses for dismissal if no PMA, counselors. Let us be honest here: It simply costs your firms too much to climb after fruit not easily obtained. And admittedly, that is understandable, because in this Orwellian world we live in, it’s all about the dollars and has nothing to do with seeking justice for the oppressed. A company as large and powerful as S&N would no doubt bleed the opposing law firm dry, and it’s really a simple — and understandably wise decision — not to risk losing money.
I have another scenario that might avoid the ‘mass tort’ or ‘class action’ lawsuit that seems plausible and would seem a safe bet for contingency cases under existing laws: that of hospital negligence, where no discussion occurred between surgeon and patient, yet the records obtained by the patient show a degree of duplicity, in that through a attempt to cover their a@ses, these records show :”The patient was warned of the dangers of metal ion and with full understanding elected to have the surgery and signed the pre-op consent form allowing Surgeon Joe to proceed”. Yet buried in those records is said consent form, upon which no mention of metal ion release was provided. In fact, the composition of the MoM THA was not even discussed with the patient. Would this not allow a case to proceed locally, where the victim gets his ‘foot in the door’ and thereby ‘ties’ his injuries to the failure and toxicity of a device placed in his or her body by a local hospital and surgeon who aren’t being honest? The exposure to the attorney would seem minimal, and even if the only damages he recovered were for the negligence of the hospital and surgeon in their failure to fully advise the patient of the inherent risks involved in the THA, wouldn’t said local attorney at least be guaranteed of covering his costs? What if the counselor is I provided a required retainer and simply paid his $$ as the case proceeds? Any attorneys out there interested? Anyone? Anyone? Bueller?
And wouldn’t such a hearing help bring light to the entire nightmare MoM THA victims are enduring, losing their jobs, savings and sanity (Wait, maybe you can’t mention any adverse mental reactions to the fiasco, as then the crazy hip guy loses all credibility)! Would it not shed light on the dark dealing of the Smith and Nephews of the world, and increase the speed of the already rolling ball? Ah, this approach assumes altruism on the part of the attorney, and he and his partners are only interested in the big awards where the ROI is guaranteed.
Oh, that I would have studied law instead of engineering. I know I would take my case, if for no other reason to get this hidden disaster on the local TV news, or at least the town’s newspaper. But I know nothing of law, I merely speculate logically.
I write here because I feel violated, left without a voice. And I have called and written my congressman and sent a letter with my hospital records to the FDA for the upcoming Medical Device Panel meeting.
But take heart all. I feel it an inevitability that all MoM THA’s will be recalled, so eventually we will see justice meted. The truth will out!
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