Lawsuit against the maker of Hernia Mesh

In May 2009, Cathleen Carson had surgery to repair a hernia and her doctor used a
polypropylene mesh made and sold by Atrium Medical Corp, Maquet
Cardiovascular US Sales LLC, Maquet Cardiovascular LLC and Maquet Medical
System USA. Following the surgery, Ms. Carson experienced problems and she
sued the makers of the hernia mesh asserting the following claims:
• Breach of express and implied warranties;
• Failure to warn;
• Negligence;
• Negligent misrepresentation; and
• Strict liability.

According to the complaint, after the surgery, Ms. Carson suffered from “severe
abdominal pain, inability to eat solid food, difficultly ambulating and serve leg pain
due to nerve damage. “

The Defendants filed a motion to dismiss the complaint. The Judge granted
Defendants’ motion to dismiss Ms. Carson’s manufacturing defect claim.

The Judge stated, “Plaintiff does not point to specific facts to support negligence in
the manufacturing process; she simply makes general statements that Defendants
were negligent in the manufacturing process.”

However, the Judge has allowed claims of negligent failure to warn and negligent
misrepresentation against the maker of hernia mesh. The Court ruled that the
plaintiff has adequately pled that the manufacturers failed to warn her physicians
of the device’s risks and misrepresented it as effective and safe.

If you are a victim of faulty medical medical mesh, contact our office at (561) 686-6300 to set up a consultation.

ATTORNEY KELLY HYMAN ELECTED PRESIDENT OF FEDERAL BAR ASSOCIATION, PALM BEACH COUNTY

On Thursday, October 5, 2017, Kelly Hyman will be formally sworn in as President of the Federal Bar Association, Palm Beach County. The ceremony will take place at the Kravis Center in downtown West Palm Beach. In addition to the swearing in ceremony, there will also be a panel discussion featuring members of the Federal Judicial Nominating Commission for the Southern District.

Kelly Hyman, of Searcy Denney Scarola Barnhart & Shipley, has a deep passion for the local community and plans to work closely with the members of the Palm Beach Chapter of the Federal Bar Association to increase attorney engagement with the community throughout South Florida. Hyman, a native Floridian raised by a single mom, knows firsthand the impact good role models have on youth. “My mother and those around me while growing up encouraged me to pursue my dreams and because of that I am now a lawyer. My desire is to pay it forward and to work alongside attorneys throughout South Florida to educate local youth on the legal profession and encourage them to follow their dreams.”

Before joining the tobacco unit at Searcy Denney Scarola Barnhart & Shipley, Hyman previously served as law clerk for the Honorable Brian Sandoval, U.S. District Court Judge for the District of Nevada, the Honorable Robert Mark, United States Bankruptcy Judge for the Southern District of Florida, and for the Honorable Wendell Graham, Judge for the Eleventh Judicial Circuit Court for the State of Florida. She is also an active member of The Florida Bar, and the Palm Beach County Bar Association.

Acid Reflux Drug May Cause Kidney Disease

Nexium is an acid reflux drug made by AstraZenaca.  In 2008, AstraZeneca’s sales exceeded $5.2. billion.

From January 2011 through September 2014, Bernita Garrison was prescribed Nexium.  Mrs. Garrison and her husband filed a lawsuit against the manufacturer of Nexium asserting that she developed Chronic Kidney disease as a result of taking Nexium. They have accused the makers of Nexium of failing to warn doctors and patients that its acid reflux drug can cause chronic kidney disease and other serious injuries.  The couple assert that Nexium is defective and unreasonably dangerous because it was inadequately tested, contained hazardous design defects, and is accompanied by insufficient warning as to chronic kidney disease and other injuries.

The complaint includes the following claims:

  • Breach of implied and express warranties;
  • Fraud;
  • Negligence;
  • Negligent misrepresentation; and
  • Strict product liability.

The complaint states, “During the period in which Nexium has been sold in the United States, hundreds of reports of injury have been submitted to the FDA in association with ingestion of Nexium and other PPI.”  The complaint further states, “In addition, at the time the subject product left the control of the Defendants, there were practical and feasible alternative designs that would have prevented and/or significantly reduced the risk of Plaintiff’s injuries without imprinting the reasonably anticipated or intended function of the product.”

Plaintiffs assert, “These safer alternative designs were economically and technologically feasible- indeed they were already on the market- and would have prevented or significantly reduced the risk of Plaintiff’s injuries without substantially impairing Nexium’s utility.”

mass tort attorney

Mass Tort vs. Class Action Lawsuits: What’s the Difference?

You’ve probably heard the phrase ‘class action lawsuit’ many times before, but a phrase you may not hear as often is mass tort litigation. The truth is that sometimes these terms are mistakenly used interchangeably, and while there are some striking similarities in the two types of lawsuits, there are also major differences.

The terminology can become confusing, especially if you’re not a mass tort attorney. So to help you understand some of the differences between these legal terms, here are a few of their similarities and differences.

First Things First: What is Mass Tort Litigation?
A ‘mass tort’ is a civil lawsuit involving numerous plaintiffs with similar injuries seeking relief from the same defendant, which is often a corporation. A ‘class action’ is a civil lawsuit in which a group of plaintiffs with similar injuries sue the same defendant as a group.

If you think a mass tort action and a class action lawsuit sound exactly the same, then you aren’t the first to be confused by these terms. In a mass tort action, each plaintiff’s claim is considered individually.

Similarities Between Class Action and Mass Tort Lawsuits
There are quite a few similarities between mass tort and class action litigation:
Number of People Involved
Both types of lawsuits deal with a large group of individuals who have been harmed by the same thing, such as a defective product, service, or drug.

Common Defendant
These plaintiffs are united against one or more common defendants that are alleged to have caused said harm.

The Differences Between Class Action Lawsuits and Mass Tort

How Plaintiffs Are Treated
While a mass tort litigation will treat plaintiffs as individuals, a class action lawsuit treats all plaintiffs as if they were a single entity. Thus, mass tort actions require each plaintiff to confirm facts specific to their individual case. Class action lawsuits, on the other hand, elect a ‘class representative,’ who speaks for all of the plaintiffs involved.

These Lawsuits Can Be a Lifeline After an Injury
In 2013, CNN reported on a series of surveys that showed just how financially vulnerable Americans are: three in four Americans were living paycheck to paycheck at the time, while an additional 23% said they had no savings whatsoever.

Kelly Hyman, attorney at law, is a West Palm Beach resident, and former actress. Ms. Hyman is a member of the Palm Beach County Bar Association, The Florida Bar, The D.C. Bar and is President Elect of the Federal Bar, Palm Beach County Chapter

11th Circuit Upholds Award of Summary Judgment in Mirena Lawsuit

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Kelly Hyman – Lawyer

http://www.jdsupra.com/legalnews/11th-circuit-upholds-award-of-summary-49074/

In March 2014, Jenna Thurmond sued Bayer in the U.S. District Court for the Northern District of Georgia, alleging that her use of the Mirena contraception system caused her to develop pseudotumor cerebri.  Her symptoms included changes to her vision and hearing, head and neck pain, severe migraines and Vertigo.

Ms. Thurmond asserted claims for breach of implied and expressed warranties, concealment, design defect, failure to warn, fraudulent misrepresentation, fraud suppression, negligence, negligent misrepresentation, and strict liability.

On May 23, 2014, the parties filed a joint preliminary report and discovery plan.  The District Court granted the parties’ joint request to extending the deadlines for fact discovery to January 31, 2015.  On January 31, 2015, Ms. Thurmond moved to extend the deadline until October 23, 2015, and the Court denied the request holding that Ms. Thurmond had not shown what new fact discovery was needed or why it was needed.

Ms. Thurmond moved to extend the expert disclosure deadline and to amend her complaint to add foreign entities Bayer OY and Bayer Pharma AG as Defendants.  On May 11, 2015, Bayer moved for summary judgment.  On August 4, 2015, the District Court denied Thurmond’s motions to extend discovery and to amend her complaint and awarded Bayer’s Summary Judgment.

Ms. Thurmond appealed, arguing that the trial court abused its discretion by denying her motions to extend fact discovery and expert disclosure deadlines.  The appellate court noted that Ms. Thurmond submitted her first request for production on October 21, 2014, four months after the discovery schedule was entered, and she initiated no depositions, or name any expert witnesses.  Ms. Thurmond explained that further discovery would be necessary if additional defendants were added.

Because the District Court was within its discretion to deny leave to amend her complaint, it properly denied Ms. Thurmond’s request for an extension, the appellate court held.  The appellate court noted that the trial court granted one discovery deadline extension and it was not an abuse of discretion to deny a second.

The appellate court also rejected Ms. Thurmond’s argument that the District Court abused its discretion by denying her motion to amend her complaint to add two Bayer foreign entities.

Finally, the appellate court held that the trial court properly awarded Bayer summary judgment.  The appellate court concluded:

In the appeal, Thurmond has conceded that she has not attempted to argue the merits of the lower court’s ruling on granting summary judgment. Thus, she has abandoned this issue, and it is not before us.

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Takata Exploding Airbag Claims Another Young Life

 

A Texas teenager, Huma Hanif was killed when the Takata airbag in her Honda Civic exploded as a result of a crash.  Since 2011, the Honda Civic has been recalled multiple times.  According to the victim’s family, they have not received recall notices.

Bob Haenal, an officer at the Fort Bend County Sherriff’s Office, stated that Ms. Hanif was driving on a state road outside of Houston when she ran into the car in front of her.  “Almost like a shotgun blast penetrating and unfortunately this piece struck Huma in the back and took her life. Sad, tragic,” Fort Bend County Sheriff Troy Nehls said.  Huma, who wanted to be a nurse died on the scene.

Lead investigator, Danny Beckworth, stated, “She wasn’t speeding.  The car only had moderate damage.”  “We see crashes like this each and every day,” Nehls said. “She should have walked away from this with very few injuries.”

Please see the video here.

In a statement, Honda confirmed a death in Texas by a rupturing Takata airbag.  A spokesperson for Takata stated, “deeply sorry for all fatalities and injuries that have occurred in any case where a Takata airbag inflater has failed to deploy as intended.”

The real problem that Takata does not want to talk about is that their air bag does not fail “to deploy as intended”. Actually, it deploys much like a shotgun blast, complete with metal shards as bullets. Inferior materials and a poor design have resulted in this dangerous weapon in our cars.

Senator Bill Nelson, Democrat from Florida, said in a statement that the death showed that current recall efforts were falling short.  The Senator stated, “Takata and the automaker have to step up their efforts to locate, notify and fix every impacted car as soon as possible- before anyone else dies.”

It is unclear whether the car had already been recalled when the family acquired the car.  The United States does not require the repair of used vehicles that have been recalled for safety issues before they are sold.

Vehicle owners can go to www.safercar.gov and type in their vehicle identification number to check for recalls.

Kelly Hyman 2016 and also posted on JD Supra

Who is Kelly Hyman?

 

Who is Kelly Hyman

I became a lawyer to help people.  To fix wrongs and make them right.

Life is full of choices and events that shape to each of us.  It is up to us to determine how we respond to events that happen to us and what choices we make thereafter.

As a young child, I was an actor, always on a stage somewhere.  As an actor, I also saw many injustices committed against myself and other children – by agents, producers, directors and sometimes even the parents.  This fostered an early dedication to trying to help others and in working to understand a situation through the eyes of another person.  It was disheartening to see children work, get paid, then never see some or all of their money.

As an adult, I continued working to help others, and understand their situations.  Having an opportunity to serve as a White House intern while I was still in college led me to being able to understand, while we all may be small, we can be part of a larger system and work hard to see changes get made.

After law school, I was fortunate to clerk for a Federal Judge.  My experiences provide a vision of how I can both help people through the law, and also look at their experiences through the lens of my own background to better be able to do the right thing for them.

I often see attorney’s on TV just yelling at each other.  Why?  This serves no purpose.  It is better to provide thoughtful and intelligent analysis and actually help people understand the issue at hand.  I feel the same way about the law.

January, 2016

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Miscommunication leads to many railway and train accidents

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Official Kelly Hyman 2016

An Amtrak train collided with a maintenance vehicle in Chester, Pennsylvania, killing two Amtrak employees, Backhoe operator Joseph Carter Jr., and supervisor Peter Adamovich in the early morning of April 3, 2016. About 30 of the over 300 passengers aboard were also injured, most with bruises and scrapes.  The engineer on the train had only five seconds to brake before crashing into a backhoe occupying the same track.

Investigators with the Federal Railroad Administration (”FRA”) and the National Transportation Safety Board have focused on miscommunication as one shift of track workers and supervisors took over for another.  During a shift change, the outgoing supervisor was supposed to inform the incoming supervisor, who then was to meet with his or her crew before anyone enters the track, rail safety experts said.  The supervisors also communicate with Amtrak dispatchers.  “The procedures were in place, and somebody did not follow them,” said consultant Russell Quimby, a retired NTSB safety engineer.

FRA rules always require that a notification be made to the workers before there are any changes to their job briefing“, the agency directive said.  A federal safety directive also described secondary safety measures Amtrak should consider to prevent crashes, including the use of a device called a “shunt” that sends an electronic signal to the dispatcher.  Amtrak Chairman, Joe Boardman promised to remind workers of “the seriousness of following our rules to prevent accidents, injuries and deaths.” “We will begin the safety stand down immediately with all active crews,” Mr. Boardman said in a statement.  Amtrak has been also ordered to retrain rail workers on basic safety rules.  The FRA directed Amtrak to conduct immediate safety reviews.  The U.S. Department of Transportation’s FRA said it told the national passenger railroad to perform a “safety stand-down” which is a review of basic work-safety protocols with its workers.

Mr. Boardman said Amtrak has been working on a plan to reinforce safety rules.  He said he also has called for a revamping of Amtrak’s engineering and dispatching departments, and its national operations center. “The FRA direction helps us impart the seriousness of following our rules to prevent accidents, injuries and death,” Mr. Boardman stated.

Kelly Hyman 2016 and also posted on JD Supra