Manufacturers who market products to the general public are legally vested with a responsibility to ensure their products are reasonably safe and do not pose unnecessary risks to consumers. DePuy, a company that manufactures and markets medical devices, is currently being scrutinized by regulators and consumer advocates for failing to meet that responsibility when it released thousands of defective hip implants into the marketplace. Since admitting to the material deficiencies of the hip implants in August, DePuy has subsequently issued a massive recall potentially affecting 13% of the individuals who received the implants.
Just as manufacturers have certain legal responsibilities toward the public, victims of product defects likewise have certain responsibilities toward themselves should they wish to maximize any recovery they may be entitled to for manufacturer wrongdoing. Under the law of Louisiana and most other states, injured parties have a duty to mitigate their damages. In the case of bodily harm, this means the injured person should seek out the expertise of a doctor as soon as they are aware, or should have been aware, of the injury. Additionally, injured parties should avoid putting off remedial treatment when possible.
The principle behind the “duty to mitigate” rule is to prevent individuals from taking advantage of another’s wrongful act for the bad faith purposes of experiencing a windfall. When a defendant commits a negligent act, the law strives to hold that person responsible only for the actual and legal consequences of that act. Any other harm that occurs, which cannot be traced to the bad act itself, will not be chargeable to the alleged wrongdoer.
Although most victims of a defective product do not consciously try to avoid mitigating their injuries, it often occurs instinctively as a consequence of innocent inaction on the victim’s part. Moreover, even when victims make a valid attempt towards preventing further harm to themselves, they may naively forget to document their efforts. Months or years later, when the manufacturer challenges the plaintiff’s mitigation attempts in court, the plaintiff is consequently unable to recall which actions they took, generating doubt in the eyes of the jury.
Compatible with the duty to mitigate principle, recipients of the recalled DePuy hip implants should take proactive steps to ensure their legal claims and rights are not diminished. Recipients should contact their doctors in a timely manner for medical advisement. They should keep notes of any pain or complications they immediately notice after either the injury first surfaces or after they first receive notice of the recall. Most importantly, recipients should contact an attorney for advisement on which steps they can take to avoid weakening their case. Equally vital, recipients should not make contact with DePuy before they consult with a lawyer.
If you have been affected by the DePuy hip implant recall and are unsure of how to meet your duty to mitigate damages, please contact The Berniard Law Firm. Not only will you receive valuable instruction on how to meet your legal responsibilities, Berniard attorneys will also advise you of the best course of action available to recover for any actual or potential harm stemming from the defective Depuy hip implants.