There’s good news for people who think a Smith & Nephew Birmingham Hip Resurfacing System injured them: Two district court judges in the U.S. District Court for the Northern District of Illinois have ruled against Smith & Nephew’s attempts to dismiss plaintiffs’ cases on the grounds of a doctrine called “preemption.” The courts ordered Smith & Nephew to submit answers to both plaintiffs’ claims.
Plaintiffs Claim Manufacturing Defect, Not Design Defect
In most metal-on-metal hip replacement lawsuits, the plaintiffs allege that the defendant designed a defective product that causes injuries. The plaintiffs’ claims are bolstered by the fact that all-metal hip replacements are cleared through the U.S. Food and Drug Administration’s (FDA’s) 510(k) premarket notification process, which allows device manufacturers to forgo clinical trials if they show that their products are “substantially equivalent” to predicate devices already on the market. The result has been untested devices being implanted in people’s bodies. However, the Birmingham Hip Resurfacing System was a novel product that was cleared through the FDA’s premarket notification process, which does require clinical trials. Consequently, federal law “preempts” recipients who sue Smith & Nephew over its Birmingham Hip Resurfacing System from suing the manufacturer for defectively designing the device.
“Preemption” does not, however, prevent plaintiffs from suing Smith & Nephew for defectively manufacturing their Birmingham Hip Resurfacing Systems. In one lawsuit, Elmore v. Smith & Nephew, Inc., Smith & Nephew claimed that federal law expressly or impliedly “preempted” the plaintiffs’ claims, and in a motion for reconsideration of a decision against it on those grounds, it argued that the plaintiffs’ claims imposed on it “requirements that are different from or in addition to the federal requirements on which they are based.” District Court Judge Robert W. Gettleman disagreed because the plaintiffs stated they were not basing their state law causes of action on defective design claims and that they are in fact based on common law duties that exist independently of FDA regulations.
Judge Gettleman’s ruling in the preemption motion has influenced at least one other case pending in Illinois federal court. According to HarrisMartin, Judge Joan H. Lefkow also ruled that Smith & Nephew’s “preemption” argument did not hold weight because the plaintiffs were arguing a defective manufacturing theory, not a defective design one.
Judge Gettleman’s order can be found here (PDF).
RLG Represents Smith & Nephew Hip Recipients
The rulings in these two cases show that if you or a loved one received a Birmingham Hip Resurfacing System that might have caused an injury, you might be able to hold the manufacturer responsible. The amount of compensation from a Smith & Nephew hip replacement lawsuit can include damages for full medical expenses, lost earnings, pain and suffering, and other damages. For a complimentary, confidential legal consultation with a lawyer from the Rottenstein Law Group, click on this link or call 1-800-624-9568.