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When it comes to medical device litigation, such as those involving defective hip replacement or knee replacement hardware, many of these devices are subject to the Medical Device Amendments of 1976. New medical devices are given a class designation – Class I, II or III – to indicate degree of risk, with Class III medical devices posing the greatest risk. A device that is designated as a Class III under the MDA is given express preemption from state requirements (which can be different or more stringent than federal rules), as noted in the 2008 U.S. Supreme Court case of Riegel v. Medtronic, Inc. In effect, this means such product liability lawsuits must be pursued in federal court.defective medical device

But what happens if the medical device consists of components that have different class designations? These are becoming increasingly common in everything from hip implant devices to pain dispensing pumps. It’s created a jurisdictional conflict, with plaintiffs and defendants arguing over which courts should handle these matters.

Now, it appears we have some direction. The U.S. Court of Appeals for the Third Circuit recently issued a precedential ruling in a case of first impression filed by a plaintiff who alleged a British medical device maker negligently designed a hip replacement system. The ruling is the first time a court has taken on the question of whether product liability claims concerning a device made of components in different classifications are preempted by federal law. Answer: They are. That meant plaintiff’s claims of negligence, strict liability and breach of warranty were expressly preempted and dismissed. However, the court reversed dismissal of plaintiff’s other claims that were adequately pleaded and not preempted, namely off-label promotion in violation of federal law and loss of consortium (filed by his wife). Those claims will proceed. Continue reading

A Xarelto patient is fighting back against the reversal of a $28 million verdict against drug maker Johnson & Johnson (subsidiaries Bayer and Janssen), which she initially won for an alleged failure to warn against the heightened risk of internal bleeding. Xarelto injury

The verdict in Hartman et al v. Janssen Pharmaceuticals Inc., et al was reversed in January in state court, specifically the Philadelphia Court of Common Pleas. Even though jurors decided the case in favor of the plaintiff in December and awarded millions of dollars in damages, The Legal Intelligencer reports the judge granted the defense’s motion notwithstanding verdict. The decision was especially crushing because it was the first win for plaintiffs (albeit in state court) after four losses one after another in federal court.

Xarelto plaintiff’s appeal notes several challenges, including a remark by the judge indicating alleged “inflammatory” remarks by plaintiff council during closing arguments warranted a brand new trial. The judge reportedly made the statement during a post-trial hearing, following remarks by defense counsel asserting plaintiff’s attorney inappropriately referenced defendant manufacturers’ German ties by linking it with Nazis. However, that’s not exactly what the plaintiff’s attorney said. The closing argument did urge jurors to “swing the mighty sword of justice to let those folks know, in Berlin, Germany, when they sell their drugs to us Americans to make their billions,” that they must adequately label their medications. However, after the verdict, social media posts by several members of plaintiff’s trial team reportedly used the hashtag #killinnazis. That may not have been the wisest course of action, but as even the judge noted then, those posts would have had no way of influencing that verdict.  Continue reading

Several hundred testosterone drug injury lawsuits against drug makers Endo Pharmaceuticals Inc., GlaxoSmithKline LLC and Auxilium (an Endo unit) are on the verge of settlement. Although the terms of the settlement haven’t been revealed, a spokeswoman for the pharmaceutical firms told Bloomberg it will not require any admission of wrongdoing or liability by the defendants.Androgel injury

There are an estimated 6,000 cases pending against testosterone replacement therapy drug makers, mostly alleging failure to warn of serious side effects like strokes and heart attacks, as well improper and aggressive marketing tactics to drum up more buyers – despite the lack of benefits and high potential for risk to the younger target patients.

Our testosterone drug injury attorneys in Boston are committed to fighting for the men and their loved ones affected by illegal marketing and failure to warn of these dangers, which reportedly include:

  • Heart attacks;
  • Strokes;
  • Pulmonary embolisms;
  • Deep vein thrombosis;
  • Blood clots.

If you have had any of these complications after taking drugs like Androgel, Testim, Axiron, Fortesta, Vogelxo, Bio-T-Gel or any other drug in teh Androgen class, contact us to learn more about your legal options.  Continue reading

Many work injury situations exist wherein a workers’ compensation attorney may seek to maximize a client’s recovery from job-related injuries by examining whether we might apply a broader liability theory, such as product liability. We don’t need to limit claims to the Massachusetts workers’ compensation system because often, a dangerous product – such as a defective machine, tool or vehicle – is to blame. In many cases, we can keep the workers’ compensation claim intact while also pursuing a product liability claim against the defective product manufacturer. product liability

Third-party recovery may be initiated by either the worker or the workers’ compensation insurer under MGL c. 152 section 15. (Insurers must wait at least seven months to initiate a claim, while the worker can file immediately.)

The product liability attorneys at The Law Offices of Jeffrey S. Glassman have the resources and experience to pursue both workers’ compensation and third-party liability claims, in particular those that stem from cases wherein product defects are responsible for on-the-job injuries. These can include cases of defective:

  • Industrial equipment
  • Dollies
  • Warehouse vehicles
  • Mobile warehouse storage-shelving units
  • Vehicles/ vehicle parts (tires, airbags, brakes, seat belts)
  • Forklifts
  • Scissor lifts
  • Ladders/ scaffolding
  • Cleaning equipment
  • Power tools

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Transvaginal mesh is a surgical implant designed to treat women with various conditions, including pelvic organ prolapse (POP).  This medical product was marketed as a minimally invasive means of treating these conditions. But after implantation, many women experienced painful side effects such as tearing of tissue, abrasion of vaginal tissue, and many other painful conditions for which they were not warned by Boston scientific, – the maker of many transvaginal mesh  (TVM) implants.

Boston products liability cases Surgical mesh is nothing new. It had been used to treat heart patients for many years, an even to treat various reproductive disorders in women. But transvaginal mesh was marketed as a new and effective treatment. The company managed to get it passed U.S. Food and Drug Administration (FDA) review, despite a real question as to whether adequate safety testing was performed and whether manufacturers properly notified FDA of any complications they knew or should have known about. Continue reading

Cases against big tobacco companies are not as common as they were in the 1990s and early 2000s, but people are still dying from lung cancer and suffering from other smoking-related illnesses such as  Chronic Obstructive Pulmonary Disease (COPD), and cases are still being filed by products liability attorneys across the nation including our Greater Boston area.  The main issue in these cases is how to deal with any fault attributed to plaintiff.  While there was a time when the general public was not aware of the harm smoking could cause, and there was even a time when R.J. Reynolds used to advertise “More Doctors Smoke Camels Than Any Other Cigarette,” the dangers of smoking have long since been publicized.

Smith v. R.J. Reynolds Tobacco Co.

Boston products liability lawsuitsIn Smith v. R.J. Reynolds Tobacco Co., a case from the U.S. Court of Appeals from the Eleventh Circuit, surviving spouse of plaintiff filed a products liability lawsuit against the tobacco company which produced her preferred brand of cigarettes. She smoked regularly for decades and eventually died of various diseases often associated with long-term smoking of cigarettes. At trial, a jury found in favor of plaintiff, but defendant appealed arguing the jury award should be reduced due to plaintiff’s alleged in negligence in choosing to smoke on a regular basis for many years. This particular case was filed under a theory of wrongful death. Continue reading

Litigating a testosterone replacement therapy lawsuit in Boston can involve many complex issues. One recently litigated issues deals with the challenges in filing certain claims against generic drug manufacturers involving failure to warn of a known danger.  This is a claim that the manufacturer of a drug did not adequately include warnings about certain known dangers or adverse events (side effects) on the information given to doctors or the monograph warnings given to patients at pharmacies when they go to get their prescriptions filled.

Boston products liability lawsuits The specific problems arise when a patient gets a generic version of a prescription drug.  The makers of generic drugs still must have their products approved by the U.S. Food and Drug Administration (FDA), but they are not applying for approval under a new drug application.  Since they are making a generic version of a brand name drug, as long as the generic is substantially similar to the brand name, the generic drug manufacturer is prohibited under federal law from changing warnings used by the brand-name drug manufacturer.   In other words, the generic manufacturer must simply copy the warnings use by the brand-name drug maker.  This was confirmed in two landmark cases entitled PLIVA Inc. v. Messing, and Wyeth v. Levin.   Continue reading

A products liability lawsuit involves an injury caused by a dangerous or defective product. This can involve dangerous drugs like Xarelto, or defective artificial hips like the Pinnacle ASR metal-on-metal hip manufactured by DePuy, or it can involve seemingly harmless household products that possess hidden dangers. There are various factors that will determine if a company is liable for a product that caused an injury including the following:

  • Whether the product was defective.
  • Whether the product works for the purpose for which it was designed without causing personal injury.
  • Whether the company knew or should have known of a hidden or less-than-obvious danger.
  • Whether the manufacturer adequately warned potential plaintiffs of potential dangers.
  • Whether the type good is covered the under Uniform Commercial Code (U.C.C) as adopted by Massachusetts.
  • Various other reasons not included in this list. Products Liability

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There are many drugs and other medical products on the market that we assume are safe.  The problem is that much of the research that “proves” a product’s safety actually comes from drug companies with a financial stake.  Long-term, independent studies on the safety of these medications are often sorely lacking. That’s why in so many cases, the truth of a medication’s side effects doesn’t become known until it is widely distributed to the general public.

However, there are some cases in which product manufacturers are aware or should have been aware their product failed to meet key safety standards.

Product Liability LawyerIf a pharmaceutical company knows or has reason to know of a defect in their products and either hides the results of tests performed, or chooses to be willfully-blind of a potential averse event (side effect) due to failure to conduct adequate testing, this can be the basis for filing a Boston defective drug lawsuit against the drug manufacturer.  Continue reading

Defective artificial hip implants are a major problem in the U.S. and the issue is only becoming more exacerbated as million more Americans are seeking artificial hip surgery.  It has become one of the top surgical procedures in the U.S. with hundreds of thousands of artificial hips implanted each year. According to the U.S. Centers for Disease Control (CDC), in one recent year alone there were 310,000 artificial hips implanted. This number is expected to rise in years to come with more younger patients choosing to undergo the procedure so they can attempt to lead a more active life.

defective hip implants Boston While none of these artificial hips will last forever, some are failing far sooner than promised, in some cases with serious or dangerous side effects. We have seen far too many cases where medical device manufacturers are rushing a product to market to make money when they knew or should have known the device was faulty. This is the reason for so many defective artificial hip implant lawsuits in Boston and across the nation each year. Continue reading