Otherwise valid and strong cases frequently get dismissed because of federal “pre-emption,” where courts hold that a given state law conflicts with federal law, leaving the injured with no recourse and no chance at justice at all.

Plaintiffs alleged that B&L violated the Connecticut Products Liability Act (the “CPLA by negligently marketing the Trulign Lenses and by failing to warn plaintiff MG and her physician of the inherent dangers in implantation of the device (artificial lenses to correct for cataracts and astigmatism), which caused her to suffer severe injuries to her vision in both eyes implanted with the artificial lenses. She alleged that B&L failed to report safety problems with the Trulign Lens to the FDA and also failed to conduct a safety study that the FDA had ordered it to undertake as a condition of approval of the device, depriving the plaintiff’s doctor of crucial safety information about the device.

The District Court dismissed plaintiffs’ case in its entirety on defendants’ motion to dismiss, finding all claims were preempted by federal law, holding that Connecticut would not recognize a claim under the CPLA based on allegations that a medical device manufacturer failed to report adverse events to the FDA or comply with post-approval conditions. Plaintiffs appealed to the Court of Appeals for the Second Circuit. The Second Circuit determined that the resolution of the plaintiffs’ claims depended on the interpretation of Connecticut law; because there was no controlling precedent in the Connecticut court’s jurisprudence, the Second Circuit certified the matter to the Supreme Court of Connecticut.

In a victory for the plaintiffs and for injured citizens seeking justice, the Connecticut Supreme Court held that B&L’s failure to report adverse events such as Z Syndrome injuries to a regulator, and failing to initiate the requisite post-marketing study after initial approval and marketing of the device) did indeed provide grounds for the blinded plaintiff to pursue her case under Connecticut law.

This marks the first solid decision to date  from a state’s highest court recognizing that device manufacturers must take their warning obligations seriously. Plaintiffs’ counsel noted that if Bausch & Lomb had timely warned the FDA via the adverse event reporting and had B&L complied with the post-marketing safety study when it was supposed to begin, it is unlikely MG would ever have been implanted with these dangerous artificial lenses and lost nearly all vision in both of her eyes.

The case now returns to the Second Circuit Court of Appeals for further review and disposition.

Lieff Cabraser and Corpus Law Patel announce U.S. District Judge Amy Totenberg has granted final approval to a nationwide settlement between vehicle owners/lessees and Mercedes-Benz to end the class action product defect litigation over claims that certain Mercedes-Benz vehicles were affected by HVAC system defects that led to noxious odors inside the vehicles that could be severe enough to render the luxury vehicles unfit for driving.

“This was a hard-fought litigation, and this settlement is a terrific result for Mercedes drivers,” stated Annika K. Martin, Lieff Cabraser partner and one of the lawyers representing the plaintiffs in the case. “The case is a great example of consumers banding together to get results that would be next to impossible on an individual basis – results not just for themselves, but for all drivers of the affected cars across the U.S.”

In May of 2016, plaintiffs filed a class action complaint in the U.S. District Court for the Central District of California alleging that the HVAC systems in certain Mercedes-Benz vehicles are claimed defective in that, during normal and expected conditions, the HVAC System fails to properly evaporate or drain the condensation that accumulates within the system, creating a moist, hospitable environment for the growth of bacteria, fungus, mold, and spores, which then are blown into the passenger cabin when the HVAC System is in use. Related actions were also filed in federal courts in Georgia and New Jersey, with the settlement being filed in the Northern District of Georgia, followed by numerous dispositive motions and conducted discovery as the litigation moved forward including to mediation. That mediation led in turn to the settlement first announced in December 2019 that will provide owners and lessees of affected Mercedes-Benz vehicles with reimbursement for qualified past repairs and all or part of the cost of future repairs of the HVAC systems.

The case involved what plaintiffs alleged was faulty design and manufacture of the affected Mercedes-Benz vehicles. The complaints posited that Mercedes designed HVAC systems that failed to properly drain accumulated condensation within the system, creating a moist environment hospitable to the growth of bacteria, fungus, mold, and spores, which were subsequently blown into the passenger cabin when the HVAC system was in use. This moldy air has a foul, mildew smell that is highly unpleasant and can aggravate respiratory system sensitivities. Owners and lessees have either paid hundreds of dollars to clean their HVAC systems, or are likely to need to do so in the future. The vehicles come from numerous model years of Mercedes C-Class, CLS-Class, E-Class, GL-Class, GLS-Class, GLK-Class, GLC-Class, M-Class, GLE-Class, and GLA-Class, vehicles.

“We’re very pleased that after years of uncertainty over this defect,” noted Ketan Patel of Corpus Law Patel, who also represents the plaintiffs, “lessees and owners will finally be afforded warranty benefits in order to once again enjoy the use of their vehicles. It’s gratifying to be able to bring justice and restitution not just to a few named individuals, but to a very large group of similarly-affected Mercedes-Benz owners and lessees.”

Notice information was previously provided to the class members regarding the timing and duration of the claims period on the settlement website at mercedeshvacsettlement.com.

Source/Contact

Annika K. Martin
Lieff Cabraser Heimann & Bernstein, LLP
144.202.114.179
akmartin@lchb.com

On March 25, 2019, National Public Radio (NPR) interviewed Lieff Cabraser Nashville partner Mark P. Chalos about the growing number of lawsuits filed against 3M over the company’s 10+ year provision of allegedly defective combat ear plugs to men and women serving in the US military. Complaints in the lawsuits by military and ex-military personnel, including large numbers of service men and women from Clarksville’s Fort Campbell and numerous other Tennessee areas including Memphis allege the ear plugs, distributed between 2002 and 2015, were too short for proper insertion into users’ ears, putting users at risk for permanent hearing loss, hearing impairment, and debilitating tinnitus.  According to NPR, “service members used the specially-designed earplugs at firing ranges and while driving in noisy military vehicles. One end was supposed to muffle all sound and the other would block only the loudest concussions.”

George Dooley, a retired Fort Campbell infantryman who used the 3M Combat Arms earplugs while stationed at Fort Campbell, in Germany and when deployed to Iraq in 2006, has joined hundreds of service members suing 3M. Dooley claims he has suffered extensive hearing loss and has experienced chronic ringing in his ears since leaving the Army in 2008. Dooley told NPR “the constant ringing in [his] ears interferes with everyday conversations and affects [his] sleep,” such that he “frequently he has to talk loudly, have the TV playing, or have other noise on so he can try to cope with his tinnitus.”

Lieff Cabraser Partner Mark Chalos, who represents Dooley, has asked the court to consolidate all the current 3M earplug injury cases into a single multidistrict proceeding in Middle Tennessee’s federal court to simplify the logistical and case management issues and to secure justice for the largest number of affected veterans.

“We understand that these earplugs were given to soldiers in the 101st Airborne, so it’s our understanding at this point that Fort Campbell is one of the more seriously impacted facilities in the United States Army,” Chalos noted. The full story is online on the Nashville Public Radio website.

About Mark P. Chalos

The managing partner of Lieff Cabraser’s Nashville office, Mark Chalos represents individuals who have suffered catastrophic personal injuries and families whose loved ones died due to the negligence or misconduct of others. Mark represents counties and cities nationwide in the national opioids litigation. He is serving in the national case leadership, including preparing the bellwether cases for trial.

Through jury trials, Chalos has held wrong-doers accountable, including representing 32 school children who were videotaped undressing in their school locker room ($1.28 million jury verdict) and a young woman who suffered a severe brain injury in a car wreck (nearly $4 million jury verdict). He also obtained an $8 million arbitration award on behalf of a business client, and overall has obtained millions of dollars in settlements for families who have been harmed by wrongful conduct.

Nashville, TN—(BUSINESSWIRE)—On March 18, 2019, Mark Chalos of the national plaintiffs’ law firm Lieff Cabraser Heimann & Bernstein, LLP announced that U.S. Army veteran George Dooley has filed a lawsuit in federal court in the Middle District of Tennessee against 3M Company and Aearo Technologies for hearing loss and tinnitus caused by his use as an infantry officer, including in Iraq, of defective and unreasonably dangerous Dual-Ended Combat Arms™ Earplugs (Version 2 CAEv2). The Complaint alleges that 3M and Aearo knew the Combat Arms Earplugs were defective prior to selling them, but falsified test results and misrepresented the earplugs’ performance to qualify for a multi-million dollar contract with the United States military, leading to the hearing injuries sustained by George Dooley in training and on active military duty.

“As a combat veteran and active duty soldier, I trusted 3M’s Combat Arms Earplugs to protect my hearing in dangerous situations, including while I was deployed in Iraq,” said Dooley. “They broke that trust with me and thousands of soldiers. My fellow soldiers and I deserved better.”

As stated in the Complaint, 3M sold its Combat Arms Earplugs to the U.S. military for more than a decade, and the Earplugs were standard issue in certain branches of the military (including Mr. Dooley’s) between at least 2003 and at least 2015. However, 3M did not inform the military or Dooley that the Earplugs were defective, and failed to adequately warn the military or Dooley that the Earplugs did not in fact meet the military’s sound attenuation requirements, despite 3M’s promises otherwise. Mr. Dooley used 3M’s dangerously defective Combat Arms Earplugs at gun ranges and in military vehicles for years, including while deployed in Iraq. Since then, he has been diagnosed with hearing loss and tinnitus, after never before suffering from hearing injuries. 3M’s Combat Arms Earplugs have likely caused thousands, if not millions, of soldiers to suffer significant hearing loss, tinnitus, and additional related injuries, like those of Mr. Dooley as described in today’s lawsuit.

“This is a breach of the public trust,” noted Mark Chalos, a partner at Lieff Cabraser who is representing Mr. Dooley in his case. “George Dooley was deployed in the U.S. armed forces to defend our country. While protecting the U.S., Mr. Dooley was outfitted with allegedly defective combat earplugs, which led to irreparable hearing loss and debilitating, permanent ringing in his ears. These manufacturers did wrong by Mr. Dooley and our other brave soldiers.”

In July of 2018, 3M agreed to pay $9.1 million to resolve allegations that it knowingly sold the Dual-Ended Combat Arms™ Earplugs to the United States military without disclosing defects that hampered the effectiveness of the hearing protection device. The Earplugs are non-linear, or selective attenuation, earplugs designed to provide soldiers with two different options for hearing attenuation depending on how the plugs were worn. Both sides of the dual-sided Earplugs were purported to provide adequate protection for soldier’s ears when worn. If worn in the “closed” or “blocked” position, the Earplugs are intended to act as a traditional earplug and block as much sound as possible. If worn in the “open” or “unblocked” position, the Earplugs are intended to reduce loud impulse sounds, such as battlefield explosions and artillery fire, while allowing the user to hear quieter noises such as communication by fellow soldiers or enemy combatants.

When inserted according to Defendant’s standard fitting instructions, the edge of the third flange of the non-inserted end of the Earplug presses against the wearer’s ear canal and folds back, thereby loosening the seal in the ear canal and providing inadequate protection. Because the Earplugs are symmetrical, the standard fitting instructions will result in a loosening of the seal whether either side is inserted into the ear canal. The Earplugs were originally designed, tested, manufactured, and sold by a company called Aearo Technologies, which was acquired by 3M in 2008, including Aearo’s liabilities (and leaving 3M liable for Aearo’s conduct as alleged in the Complaint).

Mr. Dooley was diagnosed with tinnitus when he retired from the military in 2008. Dooley also suffers from hearing loss. Hearing loss and tinnitus have had a significant effect on Mr. Dooley’s enjoyment of life. The constant ringing in his ears interferes with his everyday conversations and affects his sleep. He has to constantly talk loudly, have the TV playing, or have other noise on so he can cope with his tinnitus.

The lawsuit states causes of action for negligence, strict liability for defective design under the Tennessee Products Liability Act, T.C.A. § 29-28-101, and strict liability for failure to warn under the Tennessee Products Liability Act, and seeks damages as well as a commitment by the Defendants to appropriate injunctive or equitable relief, including internal reforms aimed at (1) identifying the root causes of the multiple decisions that led Defendants to knowingly disregard the results of their internal testing, to falsely certify the Earplugs as safe and effective, to fail to provide adequate warnings or proper fitting instructions, and to conceal the risks associated with the Earplugs for over a decade; (2) identifying corrective actions and institutional culture changes to address those root causes; and (3) implementing and tracking those corrective actions to ensure these failures do not happen again.

Mr. Dooley’s counsel include Lieff Cabraser partners Wendy R. Fleishman and Fabrice N. Vincent.

About Lieff Cabraser

Recognized as “one of the nation’s premier plaintiffs’ firms” by The American Lawyer and as a “Plaintiffs’ Powerhouse” by Law360, Lieff Cabraser Heimann & Bernstein, LLP is a 90-plus attorney law firm with offices in San Francisco, New York, and Nashville. Our firm has successfully represented tens of thousands of injured individuals in complex and mass tort litigation, and thousands of patients across America in individual lawsuits over the injuries they suffered from defective medical devices and dangerous prescription drugs. Five times in the last eight years, U.S. News and Best Lawyers have named Lieff Cabraser as their “Law Firm of the Year” for representing plaintiffs in class actions and mass torts.

Source/Contact

Mark P. Chalos
Lieff Cabraser Heimann & Bernstein, LLP
615 313-9000
mchalos@lchb.com

According to the Guardian, “dozens of people speak about issues that followed procedures involving medical devices, including women whose intestines fell out of their bodies after robotic surgery. Doctors, too, come forward afflicted by the unknown effects of some of these devices.”

“A wide range of people know about the problems with pharmaceuticals, but very few people know about the medical device industry and the fact that it is even less regulated than pharmaceuticals,” stated The Bleeding Edge director, Kirby Dick. “We felt it was very important that the public, doctors and policymakers know about this because right now medical device companies can get away with just about anything.”

Filmmakers interviewed doctors and patients who have been personally harmed by these dangerous and defective medical devices. “It’s normal for medical devices to come with risks for adverse reactions, and it’s a physician’s responsibility to discuss those risks with their patients. However, medical devices often escape scrutiny on their path to the American market, the filmmakers say, and demand more research and testing than they currently have,” reports TIME.

The FDA created the 510(k) pathway a provision that allows manufacturers to obtain approval if there is proof that their device is “substantially equivalent” to other devices already on the market. However, the documentary notes that it has become commonplace for devices akin to existing units to be approved for sale and open to the public without more recent testing or scrutiny of modified features.

“That provision, which was meant as an exception, in essence [is] a loophole,” explained Dr. David Kessler, a former FDA commissioner, in The Bleeding Edge. “[It] became the rule, so that the vast majority of devices today regrettably are regulated under this framework.”

“If we can’t change the laws and we can’t convince companies to put moral issues above profits, then all of us really have to be vigilant,” said The Bleeding Edge producer, Amy Ziering. “My great hope is you watch this film and then you are really, really, really careful and ask a lot of questions and do a lot of research.”

The Bleeding Edge became available on Netflix on July 27, 2018.

View the Netflix trailer for The Bleeding Edge here.

The jury’s assessment included a finding that 20% of the fault in the case was attributable to radiology errors, after a radiologist “failed to flag a visibly separated filter piece on an X-ray in 2009, before Booker’s injuries developed to the point where she needed open-heart surgery.” The remaining 80% of compensatory liability fell to Bard, such that its share of the total damages due the plaintiff is $3.6 million. Despite Bard’s arguments to the contrary, the jury also found that the surgeon who was only partially able to remove pieces of the broken IVC filter from the plaintiff’s body was not a cause of her injuries.

Multidistrict aggregate litigation that includes over 3,600 other plaintiffs injured by IVC filters they claim are defective and dangerous will continue as a small group of test cases, called “bellwethers,” will proceed over the next several months. These sample cases are intended to assess the strength and ultimate value of the multitude of injured patient claims.