Texas Jury Orders Johnson & Johnson to Pay More than $1 Billion

Texas Jury Orders Johnson & Johnson to Pay More than $1 Billion

Pinnacle Hip Implants Found to Be Defective

On December 1, 2016, a federal jury in Dallas returned a verdict against pharmaceutical giant Johnson & Johnson and its subsidiary, DePuy Orthopaedics, holding that the company’s Pinnacle hip implant was negligently designed, that the company knew of risks associated with the product, and that the company failed to adequately warn consumers of those risks. The jury awarded six plaintiffs damages in excess of $1 billion—$32 million in compensatory damages and $1 billion in punitive damages. Johnson & Johnson had rejected a $1.8 million dollar settlement offer before trial.

The plaintiffs, who are California residents, say they suffered serious injury after receiving the DePuy product, including bone erosion and tissue death. They allege that Johnson & Johnson and DePuy falsely advertised that the Pinnacle hip implant, with its metal-on-metal design, was more durable and had a greater life than competing products that use plastic or ceramic parts.

Though plaintiff’s attorneys laud the verdict as a “loud and clear” message that Johnson & Johnson needs to address the legal issues related to the Pinnacle implant, most legal experts don’t see any movement any time soon. Attorneys for both companies say they will appeal the verdict and will ask the appeals court to suspend any further trials related to the hip implant.

The company faces more than 8,000 lawsuits tied to the device, all of which have been consolidated in the federal court in Texas. Last week’s verdict was the third “test case” regarding liability for the Pinnacle. Johnson & Johnson were found not liable in the first case, but were hit with a $500 million jury award in the second trial. That verdict was subsequently reduced to $151 million, based on Texas law.

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Wood Flooring from Lumber Liquidators Can Cause Cancer

You would never expect that your beautiful new wood flooring could potentially cause serious harm to you and your family. But, earlier this month, the Center for Disease Control released a report stating that certain laminate flooring sold by Lumber Liquidators contains excessive amounts of formaldehyde. Exposure to the flooring could cause cancer, complications with asthma or COPD, and irritation to a person’s eyes, nose, and throat. You can find the CDC report online at http://www.cdc.gov/nceh/laminateflooring/default.html.

Formaldehyde is commonly used in the flooring industry as a binding agent, but there are strict limits on how much of the chemical can be used. The CDC report confirms a 60 Minutes investigation that found Lumber Liquidators’ laminate flooring exceeds these limits and that the Chinese factories supplying the flooring mislabeled the products as meeting stringent health standards.

Although the laminate top is meant to contain the formaldehyde typically used, the excessive amount found in the Lumber Liquidators laminate flooring escapes and puts people at risk. According to Denny Larson, the expert consulted in the 60 Minutes investigative report, the risk is made greater due to the fact that you are living with it on a daily basis. “You’re in a chamber so you’re living with it. You’re sleeping in there. And you’re constantly exposed. That’s the threat. The constant exposure to a potent carcinogen …”

The CDC “strongly stress[es] taking steps to reduce exposures, which should alleviate respiratory and eye, nose and throat irritation. These steps should also reduce the cancer risk.” The only way to reduce your exposure is to remove the risk.

If you purchased and installed Lumber Liquidators laminate wood flooring, you should contact us immediately. Together, we can determine your potential risk and we can help you recover your economic damages to rip out and replace the dangerous flooring.

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BEATING THE TIMER: STATUTES OF LIMITATIONS AND THE DISCOVERY RULE IN PERSONAL INJURY ACTION

Most people are vaguely aware that there are deadlines associated with the filing of a lawsuit. In general these ‘deadlines’ can be classed under the moniker of “statutes of limitation.” As the Supreme Court has explained, “statutes of limitation…are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944). Statutes of limitation require that a cause of action be brought, e.g. filed, within a specified period “after the day the cause of action accrues.” See e.g. TEX. CIV. PRAC. & REM. CODE §§ 16.002–16.004, 16.051.

The Texas Civil Practice and Remedies Code expressly provides for a 2-year statute of limitations as to claims for personal injuries. See TEX. CIV. PRAC. & REM. CODE § 16.003. In most cases, a personal injury cause of action “accrues” when a wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). Thus, for example, the statute of limitations would generally begin to run as to an automobile accident on the date that the accident occurred, not some later date when a party might learn that he had been injured. In some circumstances, however, the so-called “discovery rule” may operate to defer the accrual of such an action until a later date that an injury is discovered.
Under Texas law, the “discovery rule” provides a “very limited exception to statutes of limitations.” Computer Assocs. Int’l, Inc., v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).

While accrual of a Texas personal injury action generally occurs when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury, the “judicially-crafted” discovery rule defers accrual of the cause of action if “the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” Childs v. Haussecker, 974 S.W.2d 31, 36-37 (Tex. 1998). In such a circumstance, the cause of action would not accrue until the plaintiff knows or reasonably should have known of the injury. Id. at 37. In determining whether the discovery rule might apply, however, courts utilize a categorical approach. See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001).

Using this approach, a court does not determine when a particular injury was actually discovered in a particular case, but rather whether the case is the type to which the discovery rule applies.

If you have a question about whether an injury you’ve suffered might be subject to the discovery rule, you should contact one of the experienced personal injury attorneys at Bailey & Galyen.

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Denial of Personal Injury Claims Based on Contributory Negligence

Auto insurance companies often deny personal injury claims or offer to pay only a small settlement on the basis that the accident was partially or completely caused by the negligence of the person making the claim.  Let’s assume for example that Susan was driving down the street when Joe suddenly pulled out of a private drive directly into the path of Susan’s oncoming car which was just a few feet away and the vehicles collided, causing her to sustain serious injuries. She makes a personal injury claim against Joe’s insurance company because Joe got a ticket for failing to yield the right-of-way and she believes the accident was clearly his fault.  Joe’s insurance company may take the position that the accident was completely or partially Susan’s fault because  Joe says she was driving too fast and failed to timely apply her brakes.  (Insurance companies often disregard the investigating police officer’s opinion as to fault since the officer did not witness the accident.) The insurance company may deny Susan’s claim outright or it may offer to pay only a small fraction of her damages.

Under Texas law the amount a person is entitled to recover when they are injured by another person’s negligence is reduced by the injured person’s percentage of responsibility.  For example, if Susan’s damages (medical bills, pain and suffering, lost wages, etc.) total $100,000 and she was 25% at fault then her recoverable damages will be reduced by 25%.  So she will be entitled to recover $75,000 from Joe’s insurance company.   If she was 40% at fault then she will be entitled to $60,000.  However, if she was 51% at fault or more then she will be barred from recovering anything and will receive zero.

Contributory negligence is only one defense that insurance companies may assert in denying personal injury claims or offering small amounts to settle.  There are several other defenses they may try to claim.  A board certified personal injury attorney is often able negotiate these issues and reach a mutually agreeable settlement with an insurance company.  However, sometimes settlement is not possible and it becomes necessary to file a lawsuit.  A jury then decides these issues.

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VICIOUS CIRCLE: TEXAS DOG BITE LAW AND STRICT LIABILITY

Although numerous theories can be alleged in lawsuits relating to dog bites, strict liability is a theory most frequently pleaded. In such a case, the controlling issue to be determined is whether the party against whom suit is brought has “knowingly kept or harbored a vicious dog.” Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 300 (Tex.Civ.App.—Eastland 1971, writ ref’d n.r.e.). Because such ‘viciousness’ is generally sought to be established through evidence of prior bites, this principal of liability is often referred to as the “One Bite Rule.” But, it should be noted that despite this moniker, it is not viciousness alone which will support liability, but also dangerousness in general. See Restatement (Third) of Torts, § 23 cmt. c (2010) (“For strict liability to attach, it is not required that the animal be ‘vicious’ or aggressive; a finding of the animal’s abnormal ‘dangerousness’ is sufficient.”).

The reason for the imposition of such strict liability is explained in the Third Restatement of Torts, which states:

Given the defendant’s knowledge, the reasonableness of the defendant’s conduct in retaining the animal is at least questionable, and strict liability gives the owner an incentive to consider whether the animal should be retained. Even if that retention is itself proper, an abnormally dangerous animal is by definition unusual; owning such an animal is an activity engaged in by a few that poses significant risks on others within the community. In these circumstances, strict liability is fairly imposed.
Restatement (Third) of Torts, § 23 cmt. b (2010). Thus, “[t]he owner of a domestic animal is not liable for injuries caused by it in a place where it has a right to be, unless the animal is of known vicious propensities or the owner should know of the vicious or unruly nature of the animal.” Searcy v. Brown, 607 S.W.2d 937, 941 (Tex. App.—Houston [1st Dist.] 1980, no writ). Whether a dog has a vicious nature and whether the owner is aware of that nature is a question for the finder the jury to determine. See Pate v. Yeager, 552 S.W.2d 513, 516 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). Once an owner is aware of his dog’s propensity for viciousness he need not be negligent in order to be liable for the injuries caused when his dog bites a third party. See Bly v. Swafford, 199 S.W.2d 1015, 1016 (Tex.Civ.App.—Dallas 1947, no writ) (an “owner, whether negligent or not, knowing [his] dog is vicious, is liable for injuries to [a] person bitten by it.”).

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