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Hip replacement surgery is an extremely invasive, complicated and painful surgery. Recovery and rehabilitation can take many months. Obviously, this is an experience that no individual wishes to undergo once, let alone twice…for the same hip.

In recent months however many individuals have required second replacement surgeries as a result of a defective hip implant system designed and manufactured by Stryker Orthopedics, one of the largest developers of medical devices, including hip replacements. These defective devices are specific to two separate Stryker hip replacement systems, specifically the Rejuvenate and ABG II systems. Thumbnail image for hip replacement photo.JPG

Stryker began alerting the medical community to these defective hip systems in April 2012, when they sent an Urgent Field Safety Notice to surgeons and hospitals who reportedly used either the Rejuvenate or ABG II hip replacement systems. An official voluntary recall was then issued in the United States by Stryker in July 2012. The recall states that the risks associated with the Rejuvenate and ABG II modular-neck hip stems include “the potential for fretting and/or corrosion at or about the modular-neck junction which may result in ALTR (adverse local tissue reactions) manifesting with pain and/or swelling.”

In other words, the parts of the hip replacement are rubbing against each other, causing particles of metal debris from the implant to come off and enter the body. The condition is often referred to as “metallosis,” where metallic debris, such as from a hip replacement system, embeds and builds up in tissue and muscle, such as that surrounding the hip joint. This can then cause extreme discomfort, pain and swelling, and can lead to severe infection and/or poisoning, specifically including abnormally high levels of cobalt. Other symptoms may include persistent pain to the buttock, groin or thigh regions, headaches, general fatigue or anything else unusual. As a result of these issues, the hardware usually must be removed and replaced with different hardware.

There have been thousands of people with these defective products implanted into their bodies that may not even be aware that this defective product is inside of them. Accordingly, if you or someone you know has had a hip replacement with either the Stryker Rejuvenate or ABG II hip-stem systems, and are feeling any discomfort in the hip region, a surgeon or other healthcare provider should be contacted immediately.

The recall issued by Stryker is a clear indication that the corporation manufactured and developed defective products. Stryker has a duty to design their products in a safe manner, free of any defects. Stryker may have breached their duty by designing these products defectively and thus may be held liable for any injury caused to users of this product.
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Florida drivers need to understand the dynamics regarding the loss of vehicle control during a tread separation event. Tread separations occur predominantly in warm weather states. Florida, Texas, Arizona and California experience the highest number of tread separations throughout the country. Heat contributes to the degradation of a tire, and therefore it is no coincidence that tire defect cases involving tread separations occur most frequently in these states.

Tread separations also typically occur at highway speeds because the centrifical force of highway speeds is necessary to initiate the force which allows for the unraveling of the tire tread, and the separation of the tread and top steel belt from the remainder of the carcass of the tire.

A tread separation event is a specific type of tire failure that results in certain vehicle dynamics which make it virtually impossible to control the vehicle at highway speeds. Tire manufacturers relentlessly point a finger at, and place blame on, the operator of vehicles which undergo tread separation followed by a rollover event. Nevertheless, science has shown that the operator of a vehicle which experiences a tread separation is operating a vehicle which is reacting dramatically different than it was acting moments before and just prior to the tread separation.

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American Lake in Lakewood, Washington, was the site of a horrific and tragic boating accident on March 1, 2009. That afternoon, David Kenny “DK” Ross, 14 years old at the time, was operating a kayak in the lake. DK was traveling to spend the day with his father on Silcox Island, when he was unexpectedly run over by a motor boat operated by McKinley Randle.

DK suffered horrible and life-altering injuries as a result of the event, which have left him physically and mentally handicapped. The injuries apparently include traumatic brain injury, in addition to neck injury and a collapsed lung.

The parents of DK allege that Mr. Randle was operating his boat in a negligent manner, in that he was “traveling too fast and not keeping a proper lookout.”

The State of Florida and in particular, South Florida, is a hotbed for boating accidents. Surrounded by ocean and with warm weather on a daily basis, the potential for accidents on the water are countless. The problem is heightened by the fact that many individuals who operate boats do not have the experience or knowledge of the rules of the water and boating safety generally. Adding to the danger, Florida does not require a boating license to operate a personal vessel if over a certain age (only a standard Driver’s License is needed) and operators are not required to take a safety course if over a certain age. This lays the way for potentially catastrophic accidents, similar to that experienced by DK in Washington.

At Jay Halpern and Associates, we cater to all types of vehicular accidents, including boating and automobile collisions. Boating accidents can be very complex and boats follow a different set of rules altogether than automobiles, known as the Navigation Rules. Two of the most important rules of boating are to keep a proper look out and to travel at a safe speed so as to avoid collision. This means that when a boating accident occurs, both vessels are considered at least partially negligent for the resultant collision.

In addition to boating accidents, we also handle all types of injuries, including traumatic brain injuries like those experienced by DK. We also handle severe spinal injury, compound fractures and even less serious muscle and ligament injuries.
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South Florida has had an alarming number of bicycle accidents in the last ten years. The rise in bicycle accidents can be attributed to many factors including the increasing number of bicyclist and the increase in traffic congestion. Unfortunately, the South Florida infrastructure has not kept pace with the increase demand by cyclist and motorists.

A misconception of bicycle accidents is that all accident involve a collision with a vehicle. In addition to the dangers associated with sharing roadways with vehicles, bicyclist encounter unknown dangers in the form of poorly maintained roads, uneven roadways, and improperly designed roadways. When a bicyclist crosses an unpaved road or uneven road, his ability to control his bike is diminished and they are exposed to serious and permanent physical injuries.

As Miami bicycle attorneys we had the opportunity last year to represent two young adults who suffered serious injuries in two separate bicycle accidents.

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When a tire has failed by tread separation, and allegations are made that the tire was defective, by design and/or manufacture, a defense will undoubtedly be mounted by the tire company that manufactured the tire.

As Florida tire attorneys who routinely deal with tire cases, we are not aware of any case where a tire manufacturer has come forward and admitted that the company manufactured a defective tire. Of all the millions and millions of tires that are manufactured, are we to believe that there is not a single lemon among them? We know that tire companies, from time to time, recall certain models of tires because of defect concerns.

In a tire case lawsuit, the tire company which manufactured the tire will list a forensic tire expert, typically to assert that the tire was not defective in any fashion, and failed because of exposure to misuse and/or road hazards.

In going about a cross-examination of such experts, there is no alternative to thorough preparation for the deposition of the tire expert.

This preparation should include the following:

1. Obtaining a list of all the prior cases in which the expert has testified. Federal rules actually require that such a list be filed with court pleadings. If a case being investigated is proceeding in state court, it is likely that the expert in question has testified in prior cases in federal court so a list of the cases in which he has given testimony can be obtained. This list will usually reveal that the expert has testified virtually exclusively for tire manufacturing and tire service companies as opposed to individuals injured in tire failure and/or rollover events.

2. Review prior deposition testimony. The list of cases will also be a good starting point for obtaining deposition testimony in other cases. Reviewing such testimony is invaluable, and may reveal inconsistent positions taken by an expert in other cases made to protect the interest of the party that has hired him in another case.

Recently, we were involved in a case where an expert for a tire company asserted that a tire in question that had failed was not defective, and that the ingredients used in the inner liner were appropriate, even though they were missing a certain key ingredient. In testimony in another case, on issues that had nothing to do with our case, we found testimony by this expert where he stated that the failure to use that certain key ingredient that was missing in our case was in fact a design defect and that all tire companies were using that key ingredient as far back as two decades ago. This testimony had a dramatic effect tipping the scales in our favor for a fair resolution of the case. There are kernels of gold to be found in prior deposition testimony of adverse experts.

3. Request the production, by various forms of pleadings, of the opinions, reports, field notes and photographs of the adverse expert before the deposition. The notes, photographs and opinions of the adverse expert are the meat and potatoes of the testimony that he will offer to oppose the claims in the tire case. A thorough investigation should be made into the basis for each opinion, in order to understand whether there is some legitimate scientific foundation for statements which serve to protect the tire industry. The forensic work of the adverse expert should be reviewed by the Plaintiff’s own expert to determine whether the adverse expert’s conclusions and work lack scientific foundation.

The three methods listed above are just a beginning point for thorough preparation for the cross-examination of an adverse tire expert in a failure case. Thorough preparation may unearth bias, inconsistent statements, lack of scientific foundation, or other chinks in an expert’s armor.
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We have previously written that the three principle do’s for tire failure cases are: 1) preserve the evidence; 2) preserve the evidence; and 3) see rules numbers one and two. This is because, except for in rare cases, product defect allegations, including tire defects cannot be proven without the product being available for forensic inspection by experts.

Preserving the evidence means, that where possible, the evidence is obtained, and placed into storage in a fashion that will prevent the product from deteriorating. For tires and motor vehicles, this typically means placing the items in dry storage under lock and key.

If the product is altered, lost, or damaged, the party who had responsibility for possession and control of the product may be charged with spoliation. Spoliation is defined by Black’s Law Dictionary as the “intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.” If a court determines that a party is guilty of spoliation of evidence the court may strike the pleadings of the party guilty of spoliation, or instruct the jury that the jury may infer that the evidence would have provided damaging evidence against the party guilty of spoliation.

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1240763_car_fire.jpgWhen an automobile catches on fire following a collision, it can be disastrous and in turn lead to catastrophic injuries, including third degree burns and death. Many times this occurs as a result of a defect, making it a particularly serious issue because remedying the defect could prevent secondary injuries due to the fire.

If a specific automobile tends to catch fire more so than others, this may be a sign of a defective design and a possible products liability case. This exact issue has recently come to light, as detailed in a recent New York Times article.

According to the Center for Auto Safety, Jeep Grand Cherokee models produced from 1993 to 2004 are extremely susceptible to fires and should be recalled. This conclusion was based on three different tests performed on the Grand Cherokees, all the results of which indicated that these automobiles have a high tendency when compared to other similar automobiles, such as the Ford Explorer or Nissan Pathfinder, to result in catching on fire following a rear end collision. It is estimated that there were approximately three million of these vehicles sold, many of which remain on the roadways today.

The federal safety agency recently granted a 2009 request made by the Center for Auto Safety to begin investigation of the Grand Cherokees from 1993 through 2004. In the request, it was stated that the Grand Cherokees had two serious problems; 1) that because the gas tank is behind the rear axle and slightly below the bumper, it is in the crush zone area, making it susceptible to puncturing and 2) that the “fuel filler pipe” is positioned in a way that allows it to be ripped away following a rear impact, thereby allowing gasoline to escape. Compounding these two problems makes these vehicles particularly susceptible to catching fire following a rear-end collision.

Chrysler, the manufacturer of the Grand Cherokee, has responded to these accusations by arguing that the Grand Cherokee met the federal standard for not leaking fuel in a rear impact and that investigations did not indicate the Grand Cherokee was more likely to catch fire as a result of the impact than similar vehicles. They claim that the car was designed with “sound engineering judgment and due care,” and did not have a design defect. N.H.T.S.A. signaled that they agreed with Chrysler based on their “preliminary review.”

An important factor in the recall determination is that when the 1993-2004 Grand Cherokee’s were produced, the federal standard was that a vehicle could leak a small amount following a 30 mph rear impact with the force of impact distributed evenly. This was a major concern and deemed not a high enough speed. Accordingly, it was changed in 2006; a vehicle must now pass a 50 mph rear impact and an impact that does not spread the force evenly. It is important to note that even if a vehicle meets a minimum standard, it can still be recalled as automakers have an obligation to produce safe vehicles.

According to Mark Arndt, an independent safety consultant, it is essential that survivors of 50 mph rear impact do not suffer secondary injuries from fires that would be preventable with the proper design. Mr. Arndt explained that the Grand Cherokee problems could be alleviated if the gas tanks were protected with a plate and that the vehicle have a valve that prevents leaks if the filler pipe is ripped free.

In 2005, the placement of the gas tank in the Grand Cherokee was changed, whereby it was shifted forward from a position next to the rear bumper to in front of the rear axle. On the face, this seemed to signify the unsafe nature of the prior design. However, a Chrysler representative explained that this was due to relocation of the spare tire and not for safety reasons.

Nonetheless, if you own a 1993 to 2004 Grand Cherokee, it is important to keep a watchful eye and open ear for a recall notice. If the vehicle is recalled, Chrysler may not have to compensate owners of recalled vehicles if the vehicle is at least 10 years old. However, product liability suits can be filed against Chrysler for injuries caused by these vehicles provided they are not barred by the statute of repose.
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photo rollover k4.JPGWhen a tire fails, causing a rollover and catastrophic injuries, an investigation will follow regarding the cause of the tire failure.

Tire manufacturers and sellers will rush to propose a catalogue of reasons as to why the tire failed. Not surprisingly, this list will always exclude design and manufacturing defects built into the tire by the tire manufacturer.

Miami tire lawyers and lawyers throughout the country who handle product liability cases will be confronted with dealing with this catalogue of reasons for the tire failure, which will undoubtedly focus on the driver, user, or owner of the vehicle and tire.

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As hot weather leads to more tire failures in Southern states, Miami tire lawyers need to understand how to counter specious defenses raised to deflect attention away from the fact that a tire has been defectively designed or manufactured.

One of the defenses commonly encountered by tire lawyers is the defense theory of rim flange grooving.

The rim flange of a tire is the slightly recessed area at the very bottom of the sidewall of a tire which comes in contact with the wheel rim when a tire is mounted on a vehicle. For the laymen, this is the circumferential piece of rubber adjacent to the circular hole in every tire. It is a very thin area of rubber which goes around the tire next to the hole, is slightly depressed from the rest of the sidewall, and may have a pattern or sheen which is slightly different from the rest of the sidewall.

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As we approach the summer months, Florida tire lawyers will unfortunately see an increase in tire failures resulting in rollovers. This has been an undeniable pattern since steel belted radial tires were introduced four decades ago.

003.JPGStudies have shown that tires, whose chronological age is older than six years, have a higher propensity for experiencing tread separation events. This is not only borne out by studies focusing on tire age, but it is also supported by scientific analysis happens to rubber over time.

The passage of time has a deleterious effect on the elastic and supple qualities of rubber. Studies have shown that over time rubber hardens, loses elasticity, and has a lower break point tolerance. The qualitative effect on rubber by time can be observed by the laymen in rubber bands which become brittle, break more easily, and have less elasticity as time goes by.