What are Guidant Class Action lawyers doing?
Lawyers have joined the Guidant class action battle. We now know and are ready to prove in court that Guidant Corporation was wrong to believe that its internal heart ICD (the Ventak Prizm 2 DR) was safe and extremely reliable, despite the overwhelming fact that it was fully aware of an electrical problem in some 29,000 of those devices which could cause them to short-circuit when needed.
We also know that like the Guidant class action, claims are being pursued against Medtronic for defects in the Guidant Corporation ICD models. These include claims for personal injury as well medical monitoring.
Where will these Guidant Corporation lawsuits be filed?
Venue is very important. Claims against Medtronic or Guidant Corporation may be filed in Federal Courts or State courts where the units were sold and implanted. In order to keep the cases in state court, there would need to be a local defendant in that state. Medtronic can also be sued in their home state of Minnesota. Minnesota may turn out to be a good jurisdiction in which to file. Likewise, Guidant Corporation could be sued in its home state of Indiana. However, the consumer protection tort laws have been gutted in Indiana, apparently in response to lobbying efforts like those of big business and the Chamber of Commerce. Thus, individuals in Indiana may have a very difficult time proving their case and getting full compensation.
In addition, attorneys filing these claims need to be very careful in how these cases are pled. The pleadings in these cases must assert the correct theories of liability in order to avoid Federal Preemption. It is nearly certain that the defendants, rightly or wrongly, will assert that since the FDA "approved" the device, that they can not be sued for these subsequently discovered defects. However, we believe that this preemption defense will fail becuase of the misrepresentations and gaps in disclosure of the known defects. That is, we belive that the conduct (mis-conduct) of the defendant may get plaintiffs past the issues of preemption.
What will be proven against Guidant Corporation at trial?
Plaintiffs will demonstrate how an implantable cardiac defibrillator (ICD) works, what happens when it fails, What the procedure is for replacement, and what the risks are associated with removal and replacement. The plaintiffs intend to show that if the device fails, death can result. The plaintiffs will also show that the risks of replacement can be significant, and include infection, and all risks attendant to anesthesia. In addition, damage can occur during replacement, including scarring within the heart walls.
The plaintiffs intend to prove that those people who have one of the defective models in their chest, or had a device removed and/or replaced, have a valid claim. These plaintiffs will seek damages for the cost of the unit, the cost or replacement, the pain and suffering associated with having an additional surgery, they will also seek compensation for any subsequent damage or injury that occurred due to a malfunction in the unit. Guidant class action claims are also being brought for medical monitoring for those who are not healthy enough to have it replaced. Individual plaintiffs will also seek punitive damages against Guidant Corporation or Medtronic, as appropriate.
