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Birmingham Hip Resurfacing Update

  • August 22, 2018
  • KBA Attorneys
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We have been following the BRH MDL for some time now. As a reminder, the BHR MDL refers to the Birmingham Hip Resurfacing multidistrict litigation – the consolidation of lawsuits filed against the medical device company, Smith & Nephew, concerning its artificial hip replacement that is pending here in Maryland. The BHR litigation is one of several litigations regarding hip replacements. It involves a preemption legal issue. We recently updated you about the BHR MDL.

Birmingham Hip Resurfacing Multi-District Litigation

By way of the latest news, on June 20, 2018, Smith & Nephew filed a Motion to Dismiss certain BHR Complaints. It argued that as a matter of law, the complaints were not filed on time. There are laws, statutes of limitations, in each state that require lawsuits to be filed within a certain time. Maryland, for example, requires wrongful death lawsuits to be filed within three years of the date of death. In the BHR litigation, Smith & Nephew is arguing that some of the product liability lawsuits filed against it were not filed on time.

Just a few days ago, at about 9:30 PM on August 21, 2018, Smith & Nephew finished up the briefing for this dispositive motion. The purpose of this Motion is to reduce the number of cases against the company. If the Court agrees with the Defendant, the lawsuits under attack will be dismissed. Those individual Plaintiffs will not recover anything for their injuries, and the lawyers who represent them will likely have to take a loss on all the money spent litigating them.

In its opening Memorandum, the Defendant identified states in which a Plaintiff’s claims accrue when (i) there is an injury, (ii) the Plaintiff knew of the injury, or (iii) the Plaintiff knew or should have known of the factual cause of the injury. Defendant argues that for the Complaints governed by these state laws, Plaintiffs’ claims accrued no later than the date of their surgeries to remove or revise their BHR implants because “unlike cases where the alleged connection between an injury and product (e.g., a prescription drug) may be uncertain, Plaintiffs here all allege that their revision surgeries were ‘medically necessary’ or ‘medically indicated’ to address injuries that they identified in their Short Form Complaints.” Defendant argued further that “Further, Plaintiffs cannot postpone the accrual of their claims by identifying an event—i.e., the FDA’s Recall announcement—that occurred after their claims had already accrued under applicable state law.”

This is an interesting twist on a familiar defense argument. It will be interesting to see how the Court rules. The Plaintiffs appear to be arguing that the analysis required is very fact specific, along the lines of, what did each Plaintiff know and when did he/she know it, which, Defendant argues, is not the law in many states. Many states simply go by the day the individual was injured, which, the Defendant here argues, had to be when they had the device removed.

We will keep a close eye on this hip revision lawsuit and be sure to update our last statute update on the BRH MDL when the Court renders a decision in this particular medical device case. If you believe you may have a hip replacement lawsuit, contact us at KBA Attorneys.