J&J Patients Improperly Solicited by Firm, Distributor Says

Recipients of Johnson & Johnson hip implants recalled by the company were improperly solicited as clients by an Atlanta law firm using confidential patient data, according to lawyers defending a suit against a J&J distributor.

J&J’s DePuy unit recalled its ASR hips in 2010, prompting at least 4,500 lawsuits. The Atlanta firm, Childers, Schlueter & Smith LLC, filed some of the lawsuits, including five against an ASR distributor and sales representative. In the pre-trial exchange of evidence, the firm got 130,000 pages of documents.

One document included patient-identifying information that the defendants failed to black out, according to court filings. The law firm used that information to solicit new clients, which violates federal law protecting patient privacy, according to lawyers for the ASR distributor and sales representative. They are seeking sanctions against Childers Schlueter.

The motion by the ASR distributor and sales representative claims the law firm used the information to “generate and disseminate solicitation letters denominated as ‘advertisements’ to such patients seeking their representation.”

State Judge Alvin T. Wong didn’t rule on the issue at a hearing today in state court in Decatur, Georgia.

Both Hips Replaced

Childers Schlueter sued DC Medical LLC, the ASR distributor; MJW Orthopedics, the former ASR sales representative; and Michael J. Wright, the sole MJW shareholder. The case was filed on behalf of Candace and Gordon Hershberger of Georgia. She had both hips replaced with ASR devices, and both need replacement, according to her complaint filed in February 2011.

Childers Schlueter denied in court papers that it acted improperly, saying DC Medical and MJW want to discourage notification about the recall and “disparage and impugn the professionalism” of the firm.

In August 2010, J&J recalled 93,000 ASR hips worldwide, including 37,000 in the U.S., saying that more than 12 percent of the devices failed within five years. J&J, based in New Brunswick, New Jersey, is the world’s second-largest seller of health products.

Lawsuits describe patients in pain and immobilized by joint dislocations, infections and bone fractures. Their claims are backed by surgeons who say metal debris from the hips, made from a cobalt and chromium alloy, causes tissue death around the joint and may increase the amount of metal ions in the bloodstream to harmful levels.

Confidential Documents

On Dec. 1, DC Medical, MJW and Wright asked Wong to sanction Childers Schlueter for violating an order protecting confidential documents. It asked the judge to order that the firm stop improperly using patient information inadvertently left unredacted, and to return the documents in question.

In response to the motion, attorney C. Andrew Childers said that the mailings in question were permissible advertisements, not solicitations, to patients who may not have been notified by the company about the ASR hip recall.

The mailings, based on a 547-page document produced by DC Medical, didn’t violate the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, as the defendants claim, Childers wrote in a Jan. 3 filing. The document included the names of orthopedic surgeons and the last names and first initials of some patients.

It contains no “medical records, medical information, or any information that may be subject to HIPAA,” Childers wrote. It “was not created or maintained by any physician or other health care provider, but rather was created and maintained” by DC Medical, the distributor.

‘Physical Dangers’

“Contacting persons partially identified in the document at issue to inform them of the recall, the potential physical dangers from the defective device, and of their legal right to pursue a claim as a result of the recall is not a violation of the terms of the protective order,” Childers wrote.

Childers declined to comment before the hearing.

Unlike thousands of other cases, J&J and DePuy aren’t named as defendants in the Hershberger lawsuit. DePuy has asked to be added as a defendant to the case. A federal judge said no.

J&J faces federal lawsuits by at least 3,269 plaintiffs, according to U.S. District Judge David Katz, who is coordinating the litigation in Ohio. The company also faces more than 1,000 cases in state court in California and more than 200 in state court in New Jersey. At least 900 law firms represent patients. J&J has produced more than 18 million documents to plaintiffs.

At a Jan. 23 hearing on the federal litigation, J&J lawyer Susan Sharko discussed the sanctions motion in state court in Georgia. She said the patient information was protected by HIPAA, and the company erred in disclosing the documents.

‘No Dispute’

“There is no dispute here that this information should have been redacted,” Sharko, of Drinker Biddle & Reath LLP in Florham Park, New Jersey, told Katz at a hearing in West Palm Beach, Florida. “It’s protected by HIPAA, we should have redacted it, and we missed that in our haste getting documents out.”

The judge said that inadvertent disclosure of protected documents is “subject to ethical rules at multiple levels, including but not limited to the federal rules, case law” and his protective order.

“This court takes extremely seriously all ethical mandates incumbent upon us as lawyers and judges to follow and will not countenance violation of those ethical constraints and directives,” Katz said at the hearing.

Lorie Gawreluk, a DePuy spokeswoman, declined to comment on the sanctions litigation. She said of the pending federal lawsuits: “DePuy will defend itself against the allegations raised in the litigation and believes the evidence will show the company acted appropriately and responsibly.”

The case is Candace and Gordon Hershberger v. DC Medical LLC, 11A34982-2, State Court of DeKalb County, Georgia (Decatur). The federal case is In Re DePuy Orthopedics Inc., ASR Hip Implant Products Liability Litigation, 10-MD-2197, U.S. District Court, Northern District of Ohio (Toledo).

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