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    As LiNA Medical Settles Morcellator Lawsuit, Tracey & Fox Looks To Other Claims

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    The nation’s first lawsuit to allege that a power morcellator spread undetected uterine cancer has been settled by LiNA Medical, the device’s manufacturer. Sean Tracey, Esq., of Tracey & Fox, discusses this breaking development.

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    July 2, 2015 saw a major development in the ongoing power morcellator litigation, a growing number of lawsuits alleging that the medical device has spread undetected uterine cancers and shortened many patients’ lives. Initially reported by the Wall Street Journal, LiNA Medical, a Danish device manufacturer with US offices in Georgia, has entered an undisclosed settlement agreement resolving the allegations made by Scott Burkhart. Burkhart’s claim, the first to be filed in America, is also the first to reach a resolution.

    In his complaint*, filed on March 14, 2014, Burkhart accused LiNA Medical of failing to warn patients of the morcellator’s substantial risks, while manufacturing a device that was defective by design. The lawsuit came one year after Burkhart’s wife, Donna, lost her battle with leiomyosarcoma, an aggressive soft tissue cancer. Burkhart claimed that LiNA’s morcellator, used during a hysterectomy procedure in 2012, had spread undetected cancer cells to other organs in his late wife’s body, hastening her eventual death.

    It remains unclear whether LiNA accepted any liability in relation to these allegations, although according to Sean Tracey, Esq., managing partner at Tracey & Fox, many medical device settlements do not require any admission of wrongdoing. Even so, Tracey is now looking forward, toward the more than 20 other morcellator claims that have been filed in federal courts.

    “It will be very interesting to see how other defendants react to LiNA’s settlement with Mr. Burkhart,” Tracey said. “There are many different companies that manufacture power morcellators, and while Johnson & Johnson has pulled its devices from the market, some products remain in use. We’ve seen most claims filed against Johnson & Johnson and its subsidiary Ethicon, but almost every other major manufacturer has been hit with lawsuits, too. Which means that we’re waiting for possible responses from a wide range of Defendants, rather than one.”

    Burkhart’s claim was filed only one month before the FDA, in an almost unprecedented safety warning, announced that it was discouraging the use of power morcellators in “the majority of women” undergoing uterine fibroid removal procedures. The agency estimated that as many as 1 out of every 350 women undergoing these procedures was at risk of harboring an undetected uterine cancer. Tracey pointed out that benign fibroids are largely indistinguishable from soft tissue cancers of the uterus. “There’s no medically acceptable way to predict which women are harboring these cancers, and which women aren’t. Effectively, every woman may be at risk and Plaintiffs have argued that morcellation only compounds that danger,” he said.

    Another development may also affect the future course of the morcellator litigation. Filing a request (In Re: Power Morcellator Litigation, MDL Case No. 78) with the US Judicial Panel on Multidistrict Litigation, six plaintiffs have asked for the 22 currently-filed morcellator lawsuits to be transferred to a single court in Kansas.

    Consolidation is common in mass torts, litigations in which a number of Plaintiffs make similar allegations against a common Defendant. “Multidistrict Litigation is really about efficiency,” said Tracey. “MDL allows a single judge to rule on questions of fact shared by multiple complaints. After discovery and pretrial motions, the lawsuits can be remanded to the courts in which they were initially filed. This allows different Plaintiffs to choose whether or not their cases proceed to trial, but they make those choices independently of one another. The process of filing new complaints is also often streamlined.”

    Along with attorneys Rebecca King and Andrew Rubenstein, fellow attorneys at Tracey & Fox, Tracey is currently representing two women who have filed their own power morcellator lawsuits in Philadelphia. Filing their complaints on May 14, 2015, in the Philadelphia County Court of Common Pleas, Betty Dobson and Anita Whittaker claim that the use of a power morcellator manufactured by Japanese corporation Olympus spread undetected uterine cancer cells throughout their bodies. Dobson's lawsuit was registered as case 150401310, while Whittaker's complaint has been filed under case number 150401312.

    Tracey & Fox continues to provide free consultations and case eligibility evaluations to patients and survivors who were diagnosed with uterine cancer after undergoing morcellation procedures. For more information, call 713-495-2333.

    *Burkhart v. LiNA Medical US et al., No. 5:14-cv-1557, complaint filed (E.D. Pa., Allentown Mar. 14, 2014).

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