Chicago Accident Law Blog

Lawyers representing victims who have been injured using table saws must be aware of the flesh-detection technology available that could prevent most of these injuries. The Consumer Product Safety Commission estimates at least 60,000 injuries and 3,000 amputations per year stem from use of table saws in the U.S. Dr. Stephen Gass, the inventor of the flesh-detection technology, called Saw Stop, has testified as an expert that this technology should have been incorporated in any table saw manufactured after 2004. The Saw Stop technology detects contact between human flesh and a saw blade so that accidents that might otherwise have resulted in a severe laceration or amputation will cause only a minor cut or scratch.

Lawsuits claiming that the table saws are unreasonably dangerous generally revolve around the theory that "a feasible alternative design" existed in the form of a saw incorporating Saw Stop technology. Dr. Gass and others have testified that it is technically, practically and economically feasible to have the Saw Stop technology incorporated into all table saws.

Illinois law requires plaintiff in a product liability lawsuit alleging defective design under the risk-utility method to present "evidence of an alternative design that is economical, practical and effective" Mikolajczk v. Ford Motor Co., 231 Ill. 2d 516, 526 (2008). The Illinois Supreme Court has held that "a plaintiff may demonstrate that a product is unreasonably dangerous because of a design defect by presenting evidence of an alternative design that would have prevented injury and was feasible in terms of cost, practicality and technological possibility" Hanson v. Baxter Healthcare, 198 Ill. 2d 420, 436 (2002). According to testimony from Saw Stop's inventor, adding the Saw Stop technology onto existing models of table saws would cost $150 per table saw.

Bringing a lawsuit for injuries received on a table saw without Saw Stop technology will generate the inevitable Daubert challenges to the experts opinions, particularly as to the technical, practical and economic feasibility, but they can be and have been successfully prosecuted. Should you or someone you know suffer a serious injury using a table saw you may wish to call an experienced product liability attorney, Edmund Scanlan, toll free at 877-494-1309 for a free consultation.

No Illinois court decisions currently interpret when the statute of limitations expires on De Puy Hip Replacements lawsuits, but there are decisions by both the Illinois Supreme and Appellate courts that provide guidance. Illinois products liability statute of limitations is found at 735 ILCS 5/13-213(d) which provides that: " ...the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death...but in no event shall such action be brought more than 8 years after the date on which such personal injury, death...occurred."

The Illinois Supreme Court has held: "...the statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused." Knox v. Celotex, 88 Ill. 2d 407, 414-415, 430 N.E. 2d 976, 980 (1982). The Illinois high court has also stated that: "...an injured is not held to a standard of knowing the inherently unknowable...yet once it appear that an injury was wrongfully caused, the party may not slumber on his rights." Nolan v. Johns-Mansville, 85 Ill. 2d 161, 171, 421 N.E. 2d 864,, 868 (1981).

On August 24, 2010, De Puy Orthopedics, Inc. instituted a recall of its ASR XL and ASR Hip Replacement Systems. These systems feature chromium and cobalt in its ball-and-socket design. In light of the Illinois decisions interpretting the "discovery rule" it appears that patients with De Puy hip replacements that have failed have 2 years from the date they noticed the failure to file suit (See Aug. 5, 2011 blog re: failures). A fair interpretation of Illinois law will lead to the conclusion that the recall of August 24, 2011, puts any person on notice at the time the failure is noticed that it was wrongfully caused by a design defect in the hip replacement system.

A recent analysis of the "discovery rule" is contained in Matias v. I-Flow, 959 N.E. 2d 94 (Ill. App. 2011).The Matias court focused on "wrongful cause" in determining when the two years begins running by stating: "it is a prerequisite for triggering of the statute of limitations that the injured plaintiff have actual or constructive notice of the possibility that someone is at fault for the injury's existence." In De Puy cases the the recall of August 24, 2010, may be held to be the triggering event.

Patients and attorneys who have clients with failed De Puy hip replacement systems should not delay in bringing suit on the belief that they weren't sure what caused the failure-the recall will most likely be determined to be the "triggering event" in imputing knowledge. Should you so choose feel free to call Edmund Scanlan, an experienced product liability trial lawyer, toll free at 877-494-1309 for a free consultation. I am currently representing several clients who have failed De Puy hip replacement systems. Do not delay.

People injured in accidents in Illinois frequently hire an attorney recommended by a friend or who advertises on TV. The lawyer retained will sometimes have little or no jury trial experience-this question should always be asked before retaining the attorney. Oftentimes the client becomes unhappy with the lawyer-lack of communication, attorney lacks the required experience, lawyer referring case out to another lawyer, and many more. Whatever the reason you are entitled to consult with another attorney for a second opinion. I have successfully represented injured victims and their families in personal injury and wrongful death lawsuits in Illinois state courts and federal courts throughout the United States for over 30 years.

On the occasions that I have been contacted for a second opinion the most common questions posed are: Is it possible to change lawyers?-the answer is YES, What will it cost to change lawyers?-the answer is often NOTHING, and Will it hurt my ability to collect full compensation?-the answer normally is NO. Remember that if you suffered injuries as a result of the fault of another you will only get one opportunity to obtain full and fair compensation and unless you have a mutual relationship of trust and respect with your lawyer it is unlikely that your goals will be achieved. It is a fundamental right of every client to discharge his/her attorney and hire another attorney and this decision must be respected by the discharged attorney.

All cases present unique factual and legal issues and we offer free consultation to discuss your case. I take pride in guaranteeing that I will be present with you at all times during the lawsuit from initial consultation, depositions, pretrial conferences, the jury trial, and any appeals that may follow. You will not be referred to another lawyer or firm nor will a young associate handle your case. I remain with my clients all the way through the litigation process. This is important because I have numerous significant verdicts for my clients in personal injury and wrongful death actions including many multi million dollar verdicts. The insurance companies and their lawyers know this-and this significantly increases your opportunity to receive full compensation. Should you so choose feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free telephone or office consultation.

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Purchasing prescription drugs over the internet without a valid prescription is shockingly simple. An internet connection, a credit card and basic Google skills are all you need to have prescription drugs delivered to your front door.

The National Association of Boards of Pharmacy (NABP) issued a rare "public health alert" on July 28, 2011. Based on a recent study the NABP found that 96 percent of 8,000 rogue websites analyzed continue to operate out of compliance with U.S. pharmacy laws. In their alert the NABP warned: "The fake online pharmacy crisis has reached an epidemic level, they prey on prescription drug abusers, and the most vulnerable members of society..." Most of these sites will sell prescription drugs without a valid prescription. The National Center on Addiction and Substance Abuse (CAPA) at Colombia University in 2006 found that 9 out of 10 websites selling prescription drugs do not require a prescription.

According to research conducted by the Partnership for a Drugfree.org found that 1 in 6 Americans purchase prescription drugs via the internet without a valid prescription. They also found that from 2000 to 2007 states with the fastest growth of Internet access also had the largest jump in hospital admissions for treatment of prescription drug abuse. The Journal of Health Affairs in May 2011 suggested that the growth of high speed internet access has fueled prescription drug abuse.

The sale of prescription drugs over the internet is extremely lucrative (see my blog of Jan. 18, 2007) and is fueled by the unholy trio of website operators (frequently overseas), the pharmacists, and online prescribing physicians. The physicians who issue prescriptions based on online questionnaires without ever seeing the patient are the most reprehensible. The Ryan Haight Online Pharmacy Consumer Protection Act makes it a felony to prescribe controlled substances over the internet without a valid prescription. However, even the sale of non controlled prescriptions drugs without a valid prescription -patient having a physical examination by a physician- is also a felony (see my blog of December 15, 2011). Late last year Senators Feinstein and Sessions introduced the Online Pharmacy Safety Act of 2011 which makes it a felony to prescribe non controlled prescription drugs without a valid prescription.

If you or a family member have been injured or died as a result of a prescription drug obtained over the internet, you can and should fight back. Medical malpractice and product liability lawsuits against internet pharmacies, pharmacists, and physicians who prescribe without a valid physician-patient relationship are an effective way to secure not only compensation for your losses but also to put a halt to this growing public health threat. Should you wish to discuss your situation further, feel free to contact Edmund Scanlan toll free at 877-494-1309.

Illinois attorneys representing clients who have had recalled DePuy hip prosthesis implanted, should be aware that these lawsuits can be kept in the state courts. Care must be taken in drafting the complaint and attention should be paid to federal civil procedural deadlines regarding remanding a case back to the state court system.

First, the DePuy ASR XL Hip Acetabular System and the ASR Hip Replacement System that were recalled by DePuy Orthopedics in August 2010, were distributed by Premier Orthopedic Sales, Inc., an Illinois corporation (See blog of April 5, 2011). Premier needs to be joined as a defendant along with DePuy Orthopedics, Inc., an Indiana corporation, pursuant to 735 ILCS 5/2-621.
Second, in drafting the complaint against Premier, it is essential that you allege facts that preclude removal pursuant to 735 ILCS5/2-621(c)(1), (2), or (3), specifically:
(1) Premier exercised control over design or manufacture; or
(2) Premiere had knowledge of the defect; or
(3) Premier created the defect.

On February 10, 2012, I filed suit in the circuit court of Cook County, on behalf of a lady whose DePuy hip implant system not only had the component parts come loose, but also caused dangerously high levels of chromium and cobalt in her blood. By alleging that the distributor, Premier Orthopedic Sales, Inc., had knowledge of the defects I plan on strenously resisting all efforts of DePuy Orthopedics to remove this action to federal court.

Many of the nationwide lawsuits that have been filed against DePuy Orthopedics, Inc. in state courts have been removed to federal court by DePuy based on 28 U.S.C. 1441, which essentially allows defendants to remove lawsuits filed in state courts to federal court, if each defendant resides in a different state than the plaintiff, no defendant is a citizen of the state in which action brought, and the amount in controversy exceeds $75,000.

Should DePuy Orthopedics, Inc. attempt to remove an action filed in an Illinois state court to federal court in a lawsuit that names Premier Orthopedic Sales, Inc. as a defendant, this can be remanded back to state court if the case was plead properly. Pursuant to 28 U.S.C. 1447(c), plaintiff has thirty days after removal to file a motion to remand the suit back to state court.

In Kopitke v. DePuy Orthopaedics, Inc. and Premier Orthopaedic Sales, Inc. (2011 WL 856865), Judge Darrrah of U.S. Dist. Ct. for the N.D. of Illinois, remanded a lawsuit DePuy had removed to federal court. The court ruled that the distributor, Premier, was not fraudulently joined to destroy diversity jurisdiction and that the allegations complied with 745 ILCS5/2-621(c)(2). The Seventh Circuit has defined "fraudulent joinder" as "a claim against an in-state defendant that simply has no chance of success." Poulos v. Nass Foods, 959 F. 2d 69, 73 (1992). Allegations alone are insufficient to keep a case in state court since a defendant seeking removal is entitled to present facts showing that "the individuals joined in the action cannot be liable on any theory." Ritchey v. Upjohn, 139 F. 3d 1313, 1318 (9th Cir. 1998).

Lawsuits against DePuy for their recalled hip implant systems filed in federal court or removed to federal court, are all transferred to the U.S. Dist. Ct. for the Northern District of Ohio to a multi district litigation panel along with thousands of other lawsuits. Keeping your clients' cases in the Illinois state courts to be handled individually is far preferable to having your client share her or his day in court with thousands of other claimants. If a case can be filed in the Illinois state courts, it should be. In selecting an attorney to represent you in DePuy litigation, remember to select an attorney not only with experience in product liability cases but also an attorney with extensive jury trial experience. Should you so choose, feel free to call Edmund Scanlan toll free 877-494-1309 for a free consultation to discuss your options.

The business of prescribing and shipping prescription medications over the internet has been used by physicians and pharmacists to ship medication out of state based solely on an online questionnaire. This can be and frequently is a violation of federal law, and if it is intentional it is a felony.

Many attorneys do not wish to get involved in cases where patients accidentally or intentionally overdose on these medications. There are several reasons for this reluctance. First, they frequently involve drug addicts whose personal physicians would never prescribe these medications. Second, the patient, physician, and pharmacist generally all live in different states and there are significant issues as to which states' laws apply. These case can be and I have been bringing them in the federal courts with success.

These physicians, pharmacists and pharmacies are commonly committing felonies, namely the crime of misbranding, in violation of 21 U.S.C. 353(b), 21 U.S.C. 331(a) and (k). Pursuant to 21 U.S.C. 333(a)2 it is a felony if it is done with intent to defraud or mislead. Most of the websites state that the physicians and pharmacies are licensed in your local area. Few are licensed where the prescriptions are shipped.

A good analysis of misbranding can be found in U.S. v. Smith, 573 F.3d 639, 651 (8th Cir. 2009), where the Court of Appeals held a prescriptions is misbranded if it is not accompanied by some sort of physical examination of the patient. None of these websites offer or even contemplate the patient seeing a physician. They merely require an online questionnaire to be filled out, and. most importantly a credit card that clears. Prescriptions are frequently shipped that day or the next by Fed Ex.

Patients and their families are reluctant to come forward because the victim is commonly an addict. The physicians and pharmacists know this and rely on this hesitancy-but victims and families should step up and sue these professionals for the drug dealers that they are. After all, criminal prosecutions are instituted everyday against drug dealers selling drugs to addicts, why should these unethical and criminal professionals not be brought to justice and to have to answer financially for their criminal conduct. If you or a family member have received prescription drugs over the internet, and an overdose has occurred, feel free to contact Edmund Scanlan toll free at 877-494-1309 to discuss what actions may be taken. If nothing else you may be assured that they will not be repeating this conduct.

Illinois product liability lawyers need to be aware of the August 2010 recall by DePuy Orthopedics of its defective metal-on-metal hip implant systems. The two hip implant systems recalled are the: (1) ASR XL Acetabular System, and (2) ASR Hip Replacement System, which first became available in 2003.

The most common problem with the ASR hip implant systems is that its components come loose. One of the design defects of these hip implant systems is that the cup-"acetabular prosthesis"-is too shallow causing it to: (1) dislocate, and (2) to shave cobalt and chromium off the metal-on-metal system and into the bloodstream when the joint's ball strikes against the cup's edge-"edge loading".

According to figures released by DePuy, 93,000 patients were implanted with these hip implants. There are current estimates that indicate that as high as 90% of patients with these hip implant systems will require revision surgery.

The most frequent symptoms experienced by patients are:
*dislocation of the hip
*metallosis and cobalt poisoning caused by chromium and cobalt being sheared off the system by"edge loading"
*fracture of the bone near the implant site
*sever pain
*inflammation and swelling
*significant difficulties walking
Metallosis can cause tissue breakdown and bone loss. Cobalt poisoning is even more insidious and can cause ringing in the ears-"tinnitus", vertigo, nerve atrophy, deafness, blindness, optic nerve atrophy, convulsions, headaches, and cardiomyopathy. Unfortunately these systems receive FDA approval through a process known as"510(K) approval process"-that did not require human tests.

DePuy Orthopedics, a division of Johnson & Johnson, is now contacting patients with these hip implant systems and offering "reasonable and customary costs of monitoring and treatment". These offers do not include:
*pain and suffering associated with the failure and the revision surgery
*medical complications that may be associated with the removal and installation of a new hip implant system
*lost wages
*any temporary or total disabilities cause by the failure
*DePuy also requires that patients submit their bills to their own insurance companies, Medicare, or other employee sponsored health plans before they consider paying medical expenses.

Patients with these DePuy ASR hip implant systems should be extremely cautious before entering into any agreement with DePuy or Johnson & Johnson. Anyone who has had these hip implant systems used in a hip replacement should contact an experienced product liability attorney to discuss your options. The best option may be to institute a product liability lawsuit to secure full compensation for all damages incurred, e.g. medical expenses, lost wages, pain and suffering, permanent disabilities, as well as damages for and complications incurred as a result of the revision surgery.

Should you so choose, feel free to call Edmund Scanlan toll free at 877-494-1309 for a free consultation to discuss your options. Our firm has extensive experience in product liability lawsuits and hip implant litigation in particular.

Physicians who prescribe drugs over the internet without seeing the patient and the pharmacies that fill and ship the drugs have sought to evade criminal and civil liability by prescribing non controlled substances. The DEA enforces the Federal Controlled Substances Act (21 U.S.C. 80 et seq.) which explicitly prohibits the sale of controlled substances prescribed by physicians who have never seen the patient.

Non controlled prescription drugs are governed by the Food, Drug and Cosmetics Act (21 U.S.C. 301 et seq.) which does not explicitly address online prescriptions and consultations. Criminal and civil prosecutions are now being pursued against these online pharmacies and physicians who sell, ship, and prescribe non controlled prescription drugs to patients based solely on an online questionnaire and "without some sort of examination." U.S. v. Smith, 573 F. 3d 639, 651 (8th Cir. 2009).

The legal theory behind these prosecutions is that online consultations with a physician is not the basis for a legitimate prescription, and therefore constitutes the crime of misbranding under the Food, Drug and Cosmetics Act (21 U.S.C. 353(b)(1), which is prohibited under 21 U.S.C. 331(a) and (k). The introduction or delivery into interstate commerce of a drug that is misbranded is punishable under 21 U.S.C. 333(a)(1), and as a felony under 21 U.S.C. 331(a)(2) if it is done with intent to defraud or mislead. The web pages of most online pharmacies that ship prescriptions without some sort of examination do both. Frequently neither the physician nor the pharmacy are licensed to prescibe or fill prescriptions in the state into which they are shipped.
In U.S. v. Smith, the Eighth Circuit stated: "A drug is misbranded unless dispensed upon "a prescription of a practictioner licensed by law to administer such drug." 573 F. 3d 639, 650 (2009). The Smith court described a "prescription drug as misbranded if it dispensed other than through a valid prescription." 573 F. 3d at 651. The Court defined "valid prescription" as "...a bona fide order-i.e. directions for the preparation and administration of a...drug for a real patient who actually needs it after some sort of examination..." 573 F. 3d at 651.