Medical Device Maker Suing Plaintiff’s Firms for False Advertising in Litigation Recruiting Ma

The litigation industry keeps evolving. Thus, LAW 360 reports here (subscription required) on litigation industry tactics being used by a medical device manufacturer. The company, Zimmer, is a defendant in various medical device cases. Zimmer is now expanding its tactic of suing plaintiff’s firms for false advertising by claiming that the law firm ads and websites are not accurate. One such complaint is here.

Set out below are excerpts from the LAW 360 article:

"Zimmer has faced a wave of product liability litigation over NexGen, and in August, the U.S. Judicial Panel on Multidistrict Litigation centralized 28 suits claiming NexGen components prematurely loosened and caused pain and loss of movement.

However, Elk & Elk and other members of the plaintiffs bar have engaged in misleading tactics in order to secure clients for product liability litigation, the current suit argues. In a TV ad, Elk & Elk asserted that the U.S. Food and Drug Administration had issued a recall of components for the NexGen knee replacement because it caused pain in the knees and joints and difficulty standing and walking, Zimmer says.

Elk & Elk is not only plaintiffs firm to make misleading statements about NexGen to win clients, either, according to Zimmer. In February, the device maker filed a suit over an Internet advertising campaign tied to NexGen from Michigan plaintiffs firms Kresch Oliver PLLC and Kresch Legal Services PLC.

That suit also challenged a television advertising campaign related to the knee system from Texas plaintiffs firm Pulaski & Middleman LLC and a letter-writing campaign from fellow Texas plaintiffs firm Weller Green Toups & Terrell LLP.

While Zimmer claims Elk & Elk’s description of an FDA recall are inaccurate, the device maker apparently did recall components of NexGen in September 2010. Zimmer issued a class II recall because a component of its knee replacement system loosened and necessitated additional surgery, according to an FDA notice.

Elk & Elk is represented by Michael Marrero of Ulmer & Berne LLP and Lyle Hardman of Hunt Suedhoff Kalamaros LLP. Zimmer is represented by Gregory Lockhart and Victoria Nilles of Taft Stettinius & Hollister LLP."

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Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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