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Trials & Litigation

Sanctions Sought for Law Firm Accused of Using Inadvertently Produced Info to Solicit New Clients

Posted Feb 13, 2012 4:30 PM CDT
By Martha Neil

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Counsel for some of the defendants in complex nationwide litigation concerning claimed defects in ASR hip implants marketed by a unit of Johnson & Johnson are asking a Georgia judge to sanction an Atlanta law firm.

Childers Schlueter & Smith was already representing plaintiffs in some of the approximately 4,500 suits filed against entities involved in distributing and implanting the ASR devices, following a 2010 recall by J&J's DePuy unit. But when the law firm received in discovery information from defendants in which patient names were not redacted, a sanctions motion contends, the law firm used the confidential data to solicit new clients, Bloomberg reports.

That, the defense lawyers contend, violated not only a court protective order but the the federal Health Insurance Portability and Accountability Act of 1996, which includes patient privacy provisions.

But "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,” the law firm wrote in a responsive filing last month.

The parties are awaiting a ruling on the issue from a state-court judge in Decatur, Ga., following a hearing on the issue last week.

Meanwhile, the issue is also being discussed in at least some of the similar cases being handled in state courts in California and New Jersey and federal litigation being overseen in Ohio.

At a hearing last month in Florida before the U.S. District Court judge overseeing the federal litigation, attorney Susan Sharko, who is representing J&J, discussed the Georgia sanctions motion.

“There is no dispute here that this information should have been redacted,” said Sharko, who works in the Florham Park, N.J., office of Drinker Biddle & Reath. “It’s protected by HIPAA, we should have redacted it, and we missed that in our haste getting documents out.”

Judge David Katz expressed concern about "ethical rules at multiple levels" that are implicated by the inadvertent production of confidential material in discovery. However, the article doesn't indicate that he made any finding or ruling on the issue.

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