Lawyers Clash Over Barratry Laws
In late August 2016, Texas lawyer John R. MacLean, also known as Scotty MacLean, filed initial paperwork for a possible class action lawsuit against the Arizona based Arentz Law Group and The Johnston Law Group. Mr. MacLean alleges that the two legal groups are guilty of violating barratry laws in a pending case over IVC (inferior vena cava) filters.
What is an IVC filter?
The venae cavae are two very large veins that return blood from the rest of the body back into the heart. The superior vena cava takes the deoxygenated blood from the upper part of the body (head, chest, and trunk area). The inferior vena cava is supplied from the rest of the body.
Some people, due to long periods of inactivity as a result of illness or surgery, are at a high risk for developing blood clots in their lower bodies. These clots may then become dislodged and move into the blood stream, increasing risk of pulmonary embolism (stroke). To decrease that risk, a small mesh-like filter can be surgically inserted in the IVC to trap the clots. This is usually done in conjunction with drug therapies, and is rarely seen as a permanent solution.
NBC News Investigation
In September 2015, NBC released an investigative report that alleges that certain temporary IVC filters sold by medical supply company C.R. Bard were defective, and contributed to the deaths of at least 27 people. A government investigation revealed that there were at least 300 other, non-lethal problems related to the filters as well. It was also discovered that executives in the company knew about the issues, and chose to continue selling the possibly defective devices.
In some cases, pieces of the filters broke and moved through the patients’ blood streams, causing heart damage, or puncturing the inferior vena cava itself. In at least one case, a blood clot actually pushed an entire filter into a patient’s heart, puncturing it and killing her.
When the public began to notice the issues with the filters, rather than recall the possibly defective products, C.R. Bard hired a public relations firm to control their image. They also hired an independent doctor to investigate their product. The doctor concluded that the IVC filters produced by C.R. Bard were at a higher risk of dysfunction when compared to other IVC filters on the market at the time. Despite these facts, the company continued to sell the product for three more years. Over 34,000 of the potentially defective devices were sold before the company took action.
The original model, called Recovery, was recalled and replaced in 2005. Subsequent replacement models of the original Recovery IVC filter (called G2 and G2 Express) were also found to have issues with moving and splintering.
Though the company constantly stated that their products were FDA approved, that approval itself has been called into question. The original Recovery filter failed its first attempt at clearing FDA regulations. On the second attempt, the regulatory specialist assigned to the case, Kay Fuller, reported that she did not receive key evidence needed to make a proper determination on the safety of the product. She stated that the absence of certain safety evaluation tests, and the small sample size of clinical trials were red flags. When she presented her concerns to the company, she was told she would be removed from the project if she continued to pursue them.
On May 18, 2015, lawyers in Arizona petitioned the court for a Multidistrict Litigation (MDL) against C.R. Bard. In the case, they sought to consolidate individual and smaller class action cases against the medical supply company into a larger class action suit. As of August 2016, there are more than 600 individual Bard IVC filter cases being represented in the MDL. More cases are continuing to be added as potential claimants are found. One case, which was consolidated into the MDL in May of 2016, seeks $5 million in damages.
The lawsuit alleges that the company had prior knowledge of the issues with the devices, and continued to sell them anyway. Because of this, the claimants are able to seek punitive damages.
C.R. Bard is not the only medical supply company currently being examined. IVC filters in general are being widely questioned for their effectiveness and potential damage. It is currently estimated that over a quarter million patients who cannot use blood thinning drugs have received an IVC filter.
A barratry law is a law instituted to discourage “vexatious litigation or incitement to it”. In common law, barratry is often used in reference to a lawyer who seeks to profit from a lawsuit through “repeated and continuous acts of litigation”, according to legal-dictionary.com.
Over time, these laws have expanded to include guidelines on ethics, such as how a lawyer may contact a potential client.
Very few lawyers have been convicted of violation of barratry laws, so they are usually considered to be outdated and largely irrelevant. Violation of these laws is considered a misdemeanor. A lawyer convicted of this crime can be fined, jailed, and/or disbarred.
MacLean Vs. the Arentz and Johnston Law Groups
Mr. MacLean has accused the Arentz and Johnston Law Groups of violating barratry and ethics laws by directly contacting potential clients in the IVC filter MDL suit. He claims these unsolicited phone calls “ignore ethical rules and barratry laws”, and that “These firms blatantly and with complete disregard for the law (and at any cost) unethically and illegally solicit clients.”
If found guilty, the accused groups could have their cases removed from the MDL. They may also receive large fines, and have their licenses revoked. If certain individuals are found to have willfully and maliciously sought to violate the law, these individuals may receive jail time.
The case will be presented in the U.S. District Court for the Northern District of Texas, Fort Worth Division. Texas is known to have some of the most comprehensive barratry laws in the country.
Lawyers Clash Over Barratry Laws