X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
There’s nothing like a short circuit inside thousands of people’s chest cavities to jump-start plaintiff lawyers and shock the heart of a corporate defendant. That has become clear over the past month, with a medical-device maker that was already squaring off with several San Francisco Bay Area plaintiffs firms suddenly the target of new — and possibly costly — litigation by some of the same lawyers. Guidant’s June 17 recall of 50,000 defibrillators comes in the midst of litigation over another defective product — and just before Johnson & Johnson was set to finalize its acquisition of Guidant for $25 billion. With that deal now on uncertain footing and tens of thousands of patients with irregular heartbeats contemplating more surgery, Guidant is back where it was two years ag a soft target for the plaintiffs bar, reportedly under federal investigation, and certainly on the defensive. Only now, it is facing multiple suits over two defective products. “This new wave of litigation is coming right in the middle of this other litigation,” said Elizabeth Cabraser, a partner with Lieff Cabraser Heimann & Bernstein. “It’s very unusual.” She filed the first defibrillator suit in Indianapolis federal court more than two weeks before the recall, after a client reported a problem with the defibrillator. “We were interested in Guidant because we were litigating against them already,” she said. And she’s not the only one. Cabraser is in a lineup of local attorneys who’ve been aggressively pursuing Guidant for years. “The plaintiff bar in San Francisco has definitely played a lead role” in going after Guidant, said Michael O’Donnell, a partner at Wheeler Trigg Kennedy in Denver who defends Guidant. And for good reason, the plaintiffs lawyers say. “Guidant is great, because we know there’s been deception before,” said Nancy Hersh, who is planning to file at least three suits against Guidant on behalf of people injured by short-circuiting defibrillators. In 2003, Guidant pleaded guilty to 10 criminal charges and agreed to pay $92.4 million to the federal government — and sign a “corporate integrity agreement” — to settle charges that it failed to report major problems with a device used to treat aneurysms. Hersh and other lawyers say the suits over the earlier device — which was made by Ancure, a company acquired by Guidant — could help form the basis of new suits. “It’s a case my firm will probably be doing because we know the company well,” said William Audet, a partner with Alexander, Hawes & Audet. Or as O’Donnell put it, “There are some efficiencies for them.” O’Donnell, who is defending the Ancure cases, said he expects Audet’s firm, which — along with Hersh & Hersh and Lieff Cabraser — pioneered the earlier litigation against the company, to play a similar role in defibrillator litigation. O’Donnell said he will likely be on the defense team in the latest wave of litigation, even as he continues to work on Ancure. Some of those earlier cases have settled for confidential sums, he said, while others have been dismissed. Cabraser’s defibrillator suit is filed as a class action in Indianapolis, and seeks medical monitoring and a comprehensive program to pay for surgeries that may be needed to replace faulty defibrillators. She said that while Guidant’s recall of the devices is a good start — and also a boon to lawyers arguing that the defibrillator is faulty — it’s not enough to address the problems faced by people with potentially faulty wiring rigged to their hearts. “We would hope not everyone has to undergo a replacement,” she said. “It’s a little bit different than recalling a car and replacing a radiator hose.” Medical monitoring cases are often filed shortly after problems with a medical device come to light. “It’s not an unusual scenario, because it’s much easier to investigate” than an injury or death claim, Cabraser said. Monitoring suits, she added, generally involve far less money than injury cases. But with the great expense of the defibrillators — from $20,000 to $40,000 for the gadget, plus the cost of surgery to implant it, and possibly the cost of taking it out — the case could quickly become expensive for Guidant. No matter the expense, Cabraser added, a monitoring program is better — and cheaper — than facing wrongful death claims. “I hate having to be in the position of having wrongful death claims,” she said. “We already have a few.” O’Donnell agreed that monitoring is indeed cheaper than injury claims, but said plaintiffs lawyers like to file medical monitoring class actions to steer injured clients their way. On June 2, the day after Cabraser filed suit, reported that the company continued to sell faulty defibrillators in 2002 after it recognized and fixed the short-circuit problem in newer models. Now, according to published reports, federal investigators are looking at whether Guidant violated the corporate integrity agreement signed in 2003. Plaintiffs firms have followed with a flurry of suits. Cabraser said she knows of at least four other defibrillator cases filed after hers. In the meantime, Guidant is waiting to see whether Johnson & Johnson is going to proceed with the merger. Media reports in recent days have suggested that the larger company may want to re-evaluate what Guidant is worth. Cabraser, for one, is hoping that the deal goes through, since Johnson & Johnson has a reputation for dealing well with safety crises. But in the meantime, she said, Guidant signaled a willingness to fight by its choice of Shook, Hardy & Bacon as lead defense counsel. “Shook Hardy is the tobacco industry’s firm of choice,” Cabraser said. “They can’t be seen as a pushover firm.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.