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Don’t get us wrong. We’re delighted to practice drug-and-device law. It’s an important, interesting, and dynamic field, and we’d never think of abandoning it. At cocktail parties people gather around and chat with us about the latest mass tort. (We hang out with a nerdy crowd.) By contrast, the ERISA, tax, and structured finance lawyers linger in the corners alone, staring glumly into their chardonnay.
And yet, law school geared us up for a very different array of cases. We were looking forward to helping folks sort out who got to keep the fox carcass. For that matter we figured that animals would figure in lots of our matters: the mouse in the soda bottle, the surprisingly and suddenly pregnant cow, and the sheep pitched overboard in the storm. And we thought we’d be dealing with an even odder menagerie of people, including the hapless lady concussed at the train station and the extraordinarily frisky old guy in Florida. We were even ready to navigate the Rule in Shelley’s Case.
Truth be told, if we ever really did encounter those old legal chestnuts, we’d risk serious malpractice, like the William Hurt character in Body Heat. One of our few fond memories of law school is recommending that movie to our trust-and-estate professor because its action hinged on the Rule against Perpetuities. He made the mistakes of taking our advice and taking his wife to the theater. Professor and spouse were both disappointed and astonished by the film’s focus on the carnal rather than the legal.
Dang it all, couldn’t we please handle some trover and replevin, for old times’ sake?
Well, it turns out that we can. We blogged a little more than a year ago about the case of Hunt v. DePuy Orthopaedics, No. 03-900 (RWR), 2009 U.S. Dist. LEXIS 61644 (D.D.C. July 20, 2009). Plaintiff in that case underwent hip replacement surgery in 1994, and that surgery apparently didn’t work out so well. In 1999, Plaintiff underwent a repair surgery during which the original implant was removed. After the 1999 surgery, a DePuy representative received permission to take the original implanted hip device. In 2003, Plaintiff asked for return of the explanted hip. DePuy did not return the hip. Later that year, Plaintiff sued DePuy for breach of express warranty (that the hip would last “25 years to life”), breach of implied warranty, and – ta da! — replevin.

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