October 17, 2007
Medtronic and the Deterrent Effect of Lawsuits
Deterrence, apparently, is in the eye of the beholder. Medtronic recalled its Sprint Fidelis cardiac leads because of possible defects, and the company now finds itself a defendant in a putative class action. Medtronic previously faced mass litigation over earlier defibrillator problems, and Guidant faced similar litigation. The question: Is this a story about a company that failed to learn from its mistakes, or is it exactly the opposite?
According to the press release issued yesterday by plaintiffs' counsel Rheingold, Valet, Rheingold, Shkolnik & McCartney LLP, this is a case of a company that failed to learn its lesson from previous litigation. The release quotes attorney Hunter Shkolnik: "I believe that this new Medtronic litigation will follow the pattern of the previous litigation. It is unfortunate that Medtronic did not learn a lesson from it and stop sales much earlier than it did. The medical community published reports about this defect and Medtronic refused to act on it."
Ted Frank at Point of Law sees it differently. He describes the recall as "undertaken in an abundance of caution despite the lack of statistically significant evidence" and notes that "Medtronic's quick disclosure and recall contrasts favorably with the slower recall by Guidant three years ago." He suggests that the budding Medtronic litigation will provide an interesting test case for members of the plaintiffs' bar who support tort liability as a deterrent: "Will Medtronic be rewarded in the courtroom, or will they face the same degree of liability and litigation expense (or worse) as that of Guidant? And if the latter, where does the supposed incentives of the modern-day product liability system come from?"
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Ted Frank's take on the Medtronic recall does not fit the facts of what occurred. The company was aware of this problem for more than a year. We have client's who had the defective leads fail in them and due to Medtronic's inaction sooner have now been forced to have repeat lead extraction surgery. We have client's who received these defective leads replaced on the Saturday before the recall was announced when their implanted defective leads failed. We also represent the family of 2 victims of the delayed recall whose leads failed in the month before the recall causing their death. How this delay in ordering the recall could be excused by anyone is unfathomable where the company was told in no uncertain terms that these leads were hurting people in March 2007 yet they wait until October 17, 2007 when they knew lawsuits were on the horizon.
Posted by: Hunter Shkolnik | Dec 9, 2007 2:16:47 PM