$8.7M in damages for botched laparoscopy

A jury returned a record verdict in Cook County Circuit Court in October for injuries suffered in 2008 by a 26-year-old Chicago woman during a routine surgical procedure while she was a patient at Northwestern Memorial Hospital in Chicago. The jury awarded the Plaintiff, Veranda Williams, $8.7 million in damages for the injuries she suffered during a diagnostic laparoscopy performed by a gynecology resident at Northwestern Memorial Hospital in April, 2008. The case was tried before Judge Debra Dooling over the course of five days and the jury deliberated three hours before reaching its verdict.

On April 24, 2008, Veranda Williams was admitted to Northwestern Memorial Hospital (“Northwestern”) with complaints of periodic pelvic pain. Ms. Williams was seen by Dr. Seema Venkatachalam, an attending Obstetrician/Gynecologist on staff at Northwestern. An exploratory laparoscopy was scheduled to help determine what might be causing her pain. An exploratory laparoscopy is a minimally invasive gynecologic surgical procedure utilizing a scope through a small incision in the belly button.

The procedure commenced the following day, April 25, 2008. Dr. Irene Moy, who was in the last months of her training, performed the procedure under the supervision of Dr. Venkatachalam. During insertion of the trocar, the instrument used to gain access into the abdomen, the right common iliac artery and vein were lacerated and an emergency surgery to repair the major vascular injury was performed by a team of Northwestern physicians. Ms. Williams lost nearly 8,000cc’s of blood, twice the amount of her normal blood volume and required a second emergent surgery while still a patient in the ICU. She required rehabilitative care at The Rehabilitation Institute of Chicago after discharge, lost her job at a local aerospace manufacturer and now suffers from significant abdominal adhesive disease which causes her chronic abdominal pain and puts her at risk for future abdominal issues including bowel obstruction.
The case was originally filed in the Circuit Court of Cook County against Northwestern in 2010 and eventually proceeded to trial in October, 2015 before Judge Elmer Tolmaire III. After a week of trial, however, a mistrial was declared after the jury informed the judge they could not reach a unanimous verdict. Following that trial it was determined by talking to several members of the jury that the jury was split 11-1 in Plaintiff’s favor.

A second trial ensued on this matter in the Circuit Court of Cook County, which began in October before Judge Debra Dooling. Northwestern defended the case by arguing Ms. Williams simply suffered a known and recognized injury which was not the result of malpractice. On Monday, November 8, 2016, the jury returned a verdict in favor of Plaintiff in the amount of $8,718,848.05. The plaintiff's attorneys presented expert witness testimony from two world-authorities, Dr. Darren Schneider, Chief of Vascular Surgery at Cornell Medical Center, and Dr. Jon Einarsson, Head of Minimally Invasive Gynecologic Surgery at Harvard. According to the Law Bulletin Publishing Company’s Jury Verdict Reporter, this verdict is the highest ever reported in Illinois for a common iliac vein or artery injury and the third highest medical malpractice verdict reported against Northwestern Memorial Hospital.

The plaintiff was represented by National Trial Lawyers member Brian Hurst and Thomas F. Boleky of BEUTEL HURST BOLEKY LLC in Chicago. Northwestern Memorial Hospital was represented by Charles Redden and Thomas Lang of Cunningham, Meyer and Vedrine, also of Chicago. Hurst said "What this young woman has been put through by Northwestern, as they’ve denied the undeniable for over eight years, should shock the conscience of anyone who lives in Chicago or considers Northwestern Memorial Hospital for their medical care. Veranda Williams went in for a routine laparoscopy to find out why she was experiencing periodic pain and ended up nearly dying as a result of a major vascular injury. She has fought and persevered and is putting her life back together, but she will suffer the effects of those injuries for the rest of her life."

10 years of litigation finally end

After 10 years of litigation, a defendant finally paid up after backing out of a deal that led to a lawsuit. The case stems from a 1998 agreement between Cranpark, formerly a Youngstown area asphalt contractor and the defendant, Rogers Group, one of the largest producers/suppliers of aggregate in the country based in Nashville, Tennessee. The two parties agreed to join forces and create a rail-fed asphalt/concrete supply yard in Youngstown, Ohio. With complete belief that the deal was going forward, Cranpark incurred millions of dollars in capital costs and changed its existing model. After Cranpark put all the necessary pieces in place, Rogers backed out of the deal. Rogers’ breach caused Cranpark to hemorrhage money, culminating in a forced sale of the business at a significant loss. Cranpark, a once profitable company, in business since the late 1970’s, was destroyed.

In 2004 Cranpark filed its lawsuit in the federal District Court of Ohio Northern District, Eastern Division. After years of litigation and discovery battles, Rogers Group filed a Motion for Summary Judgment, which Magistrate Judge George Limbert of the Federal District Court in Youngstown granted in 2010. Cranpark appealed to the 6th Circuit Court of Appeals, which overturned the trial court’s decision, and remanded the case for trial. Additional discovery and motion practice ensued. Finally, the case was set to be presented to a jury in Youngstown, Ohio in November 2013. As trial approached, Rogers made it clear that no settlement offer would come. National Trial Lawyers member Michael Pasternak and Jon Yarger of Cleveland Ohio tried the case on behalf of Cranpark. Harry Cornett and Tom Baker of Tucker Ellis, Cleveland, tried the case on behalf of Rogers Group.

On November 22, 2013 the jury returned a unanimous verdict of $15,600,000 on Cranpark’s claim of promissory estoppel. Cranpark immediate moved for prejudgment interest. Rogers then hired the Cleveland firm of Jones Day that prepared a slew of post-trial motions to have the verdict tossed out, or in the alternative, have the verdict reduced. The trial judge granted Rogers’ motion to dismiss the claim. The defendant’s motion was premised on the argument that our client did not have Article III standing. The jury verdict was erased.
Cranpark’s trial team then added David Mills to lead the appeal to the 6th Circuit. In April 2016, in a unanimous decision, the 6th Circuit reinstated the verdict and awarded prejudgment interest. Rogers filed a Motion for reconsideration and requested En Banc review, both of which were denied. The 6th Circuit ordered the case remanded to determine the amount of the prejudgment interest. Rogers began work on a Writ of Certiorari to the U.S. Supreme Court and hired former U.S. Solicitor General Paul Clement to spearhead that effort.

Consistent with the 6th Circuit’s mandate, the trial court scheduled a hearing on prejudgment interest. The hearing turned into a mediation, which resulted in the case resolving. After over 10 years of litigation and almost 18 years since the deal was first signed, Rogers agreed to pay Cranpark the $15,600,000 verdict and pay an additional $8,400,000 in interest, totaling $24,000,000.
The resolution was a complete vindication for Cranpark and bittersweet for Cranpark’s trial team. Cranpark attorney Jon Yarger, who had been with the case for over 10 years, died suddenly in August of 2015. Jon died before the he could see the final result of his dedication, devotion and superior work.

6 plaintiffs win $1B verdict in DePuy case

Simmons Hanly Conroy, one of the nation's largest mass torts firms, is pleased to announce that six plaintiffs have won a staggering $1 billion Texas federal jury verdict in the third bellwether trial involving the faulty DePuy Pinnacle metal-on-metal hip replacement devices manufactured by Johnson & Johnson (J&J). The jurors deliberated for less than a day.

The plaintiffs convinced the jury in the U.S. District Court for the Northern District of Texas Dallas Division that J&J sidestepped standard regulatory review and misled doctors to believe that the design of the market-leading DePuy Pinnacle device was safe. The jury awarded more than $1 billion punitive damages and nearly $40 million compensatory damages to the 6 patients who required “revision surgeries” following implant of the faulty artificial hip systems, which have not been recalled.

“This is a significant victory for the plaintiffs, who have suffered major injuries caused by these devices,” said Jayne Conroy, a shareholder at Simmons Hanly Conroy and co-counsel for the plaintiffs as a member of the Plaintiffs' Executive Committee for the DePuy Pinnacle multidistrict litigation (MDL).

One of the key findings in the plaintiffs’ successful case was evidence that J&J promoted the DePuy device aggressively, including through kickback payments to surgeons, even though the company knew the device was riskier than alternative devices. Also, DuPuy was able to sell a particular version of the Pinnacle hip system – the Ultamet variety, which had a metal socket liner instead of a polyethylene or ceramic liner – without significant testing because it was similar to a variety that predated 1976 regulations mandating premarket review. According to the plaintiffs’ case, the success rate for the DePuy Pinnacle metal-on-metal implants was only 53 percent after 11 years.

“The evidence presented in the testimony against J&J told the deeper story of how the science was manipulated in order to sell the product,” Conroy added.

The trial, which began Oct. 3, dwarfed the result of the second bellwether trial involving the DePuy Pinnacle devices that awarded $502 million to five other Texas plaintiffs in March 2016. Although that earlier award was reduced to about $150 million under Texas law, today’s verdict is governed by California law and won’t be subject to a punitive damages cap.

Both verdicts could be significant influencers for a possible settlement of remaining plaintiffs’ complaints, which all claim the implants were defective and caused metal debris to enter into patients' bloodstreams, resulting in severe injuries and sometimes leading to revision surgery. In early November 2016, U.S. District Judge Ed Kinkeade selected 10 additional cases for the next bellwether trial. Kinkeade oversees the DePuy Pinnacle MDL that includes more than 8,500 plaintiffs nationwide.

The plaintiffs and cases that were decided today are: Marvin Andrews (Cause No. 3:15-cv-03484-K), Kathleen Davis (Cause No. 3:15-cv-01767-K), Rosa Metzler (Cause No. 3:12-cv-02066-K), Judith Rodriguez (Cause No. 3:13-cv-3938-K), Lisa Standerfer (Cause No. 3:14-cv-01730-K) and Michael Weiser (Cause No. 3:13-cv-03631-K).

In addition to Conroy, the lead trial team representing the plaintiffs included National Trial Lawyers member W. Mark Lanier of The Lanier Law Firm, National Trial Lawyers member Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP, National Trial Lawyers member Richard J. Arsenault of Neblett Beard & Arsenault, and National Trial Lawyers member Khaldoun Baghdadi of Walkup Melodia Kelly & Schoenberger.

Missouri federal judge rules on Essure case

A Missouri federal judge remanded an Essure injury case to St. Louis Circuit Court on Dec. 2—ruling against defendant Bayer Corp.’s motion to dismiss based on federal question jurisdiction and diversity jurisdiction. Judge Henry E. Autrey of the U.S. District Court for the Eastern District of Missouri ruled in favor of 32 women, who filed suit in March in St. Louis against Bayer—the manufacturer of Essure—for serious and permanent injuries as a result of being implanted with the alleged dangerous and defective medical device. The suit was filed by St. Louis attorney and National Trial Lawyers member Eric Holland and Louisiana-based law firms Unglesby + Williams and Baggett, McCall, Burgess, Watson & Gaughan.
In his ruling, Judge Autrey asserts, “The Court finds that the federal issues raised in plaintiffs’ complaint are not substantial, and accepting federal jurisdiction would disrupt the federal-state balance contemplated by Congress.”

Essure, which is currently still on the market, is advertised and sold as a permanent birth control device that consists of two metal coils, which is implanted into a woman's fallopian tubes. Essure has been issued to approximately 750,000 women globally, according to Bayer.

Earlier this year, the FDA ordered Bayer to strengthen its Essure warning label by adding a “black box warning” to the label so that patients may have a better understanding of the risks and potential health problems associated with the device. The new warning label, which was approved in November, better addresses the risks of device migration, organ perforation, allergic reactions, persistent pain, and the fact that surgery will be required if the device is to be removed for any reason. Additionally, the FDA is now requiring Bayer to include a “patient-decision checklist,” which must be received and signed by each patient prior to undergoing the Essure procedure. The checklist summarizes key information regarding the use, safety, and effectiveness of the device, and also addresses the risks and health problems that are now associated with the device.