Hayes + Associates' part in long-running patent case’s settlement
Posted February 15, 2017
Smith & Nephew Inc. and Arthrex Inc. have settled a dispute over a patent for anchors that connect surgical sutures to bone, calling a halt to more than 12 years of litigation that spanned three separate trials in district court, along with three rulings in Federal Circuit Court and intervention by the Supreme Court. A final trial was scheduled to start Feb. 13 in U.S. District Court for the District of Oregon. On Feb. 10, the trial date was vacated, and on the following Monday a stipulation of dismissal was filed by the parties.
As reported on www.law360.com, among the issues to be deliberated, had the trial gone forward, were Smith & Nephew’s claim of lost profits due to the sale of Arthrex’s PushLock brand anchors, and whether the resilience (or “springiness”) of the Arthrex anchors infringed certain claims of U.S. Patent No. 5,601,557, issued to John O. Hayhurst, a now-retired Portland orthopedic surgeon.
The research and analysis on the biomechanical aspects of this long-running litigation have been under the direction of two key staff members at Hayes+Associates ever since the suit was filed in 2004. Dr. Jeremy J. Bauer was responsible for a broad array of experimental studies of suture anchor biomechanics, directed toward how these devices perform when used surgically for repairs to the shoulder, knee and other joints. He also prepared exhibits and animations that played an important role in helping the juries understand the engineering and clinical behavior of these devices. Dr. Wilson “Toby” Hayes , the President and CEO of Hayes+Associates, led the research program and provided expert testimony at each of the previous trials. Both Drs. Hayes and Bauer were intensively preparing for trial, along with the Boston trial team from Fish & Richardson, a nationwide law firm that specializes in patent litigation, when the case settled.
Hayes + Associates' biomechanical analysis plays role in monumental GM ignition switch settlement
Posted February 15, 2017
Analysis by Hayes + Associates, Inc., an expert witness and consulting firm in Corvallis, ORE., played a role in the September 2016 settlement of two cases resulting from a faulty General Motors ignition switch, implicated in 124 deaths and 275 injuries, that cut power to engine and safety features including power steering, power brakes and airbags.
According to Mike Spector, reporter for The Wall Street Journal, the cases were two among a half dozen originally selected for so-called bellwether trials that were aimed at setting settlement patterns for remaining personal injury and wrongful death suits. The cases arose from GM’s recall in early 2014 of roughly 2.6 million older cars with faulty ignition switches that risked jostling off and disabling the vehicle. GM reached a preliminary agreement announced September 5 to settle the lawsuits that alleged injuries tied to the defective ignition switches, said Bob Hilliard, a Texas plaintiffs’ lawyer with the firm of Hilliard & Shadowen. Hilliard’s advocacy for victims of accidents caused by GM’s defective ignition switch led to his appointment by Federal Judge Jesse Furman as co-lead counsel in this multi-district litigation, considered the single largest product liability litigation in U.S. history.
Hayes + Associates’ work involved one of the two bellwether cases, that of Virginia resident Stephanie Cockram, who sued GM over severe injuries she alleged had resulted from a single-vehicle crash of her 2006 Chevrolet Cobalt on June 28, 2011.
The H + A team, including Matt Soicher, Mark Erickson, and CEO Wilson C. “Toby” Hayes, sought to determine through biomechanical analysis how Ms. Cockram sustained her severe facial and pelvic injuries, and if these injuries would have been avoided with the deployment of a functional frontal airbag. Analysis by the H+A team demonstrated that her injuries directly resulted from the failed deployment of the vehicle’s airbag and its seatbelt pretensioners. In the event of a crash, a seatbelt pretensioner, powered like the airbag by the ignition switch and triggered by sensors, will tighten the belt almost instantaneously, reducing the motion of the occupant. The team concluded Ms. Cockram’s injuries would have been less severe or completely eliminated had the steering-wheel-mounted airbag and driver’s side seatbelt pretensioner deployed during the collision.
Hayes + Associates helps jury to find man guilty of throwing his 4-year-old daughter off cliff in 2000
Posted May 14, 2015
Testimony by Wilson C. “Toby” Hayes and forensic analysis by Jeremy J. Bauer of Hayes+Associates, Inc. (www.hayesassoc.com), an expert witness and consulting firm in Corvallis, OR, helped a jury in a Los Angeles Criminal Courts courtroom find Cameron Brown guilty of first-degree murder for throwing his daughter from a Rancho Palos Verdes cliff nearly 15 years ago. The jury’s decision came at the end of the third trial in this matter. Juries in the two previous trials found Mr. Brown guilty of his daughter’s death, but deadlocked over whether Mr. Brown was guilty of murder for intentionally throwing her from the cliff or whether he was guilty of involuntary manslaughter.
Deputy District Attorney Craig Hum stated that this third jury was able to recognize that Mr. Brown was motivated by revenge and a deep hatred for the child’s mother and that he plotted to kill the girl to hurt her mother. Mr. Hum said this trial included new evidence discovered by L.A. Sheriff’s Detective, Jeffrey Leslie, including a former co-worker of Mr. Brown who testified that Mr. Brown once said it would be nice if they could just get rid of the children.
The foreman for the jury, George Apodaca, said that it only took one day for the jury to come to an agreement. He said the key to the case was an expert witness (Dr. Hayes, testifying based on the laws of physics and the science of injury biomechanics) who said the girl’s injuries were inconsistent with a slip or trip and instead suggested that she was thrown from the cliff. According to Hayes, the location and severity of the girl’s injuries were consistent with a single, high-speed impact with the cliff after having been launched by her father off the top of Inspiration Point in Palos Verdes, CA. Mr. Brown claimed the girl slipped and fell. However, her body lacked the physical evidence that a slip or fall would have created.
In addition to finding Mr. Brown guilty of first-degree murder, the jury found true the special circumstance allegations of lying in wait and acting for financial gain. Because of the special circumstances, Mr. Brown faces a mandatory sentence of life without parole. He is scheduled to be sentenced on June 19, 2015.
Hayes + Associates analysis contributes to jury’s $248 million award against Hyundai
Posted May 15, 2014
Technical analysis by mechanical engineer Mark Erickson of Hayes + Associates in Corvallis, Ore., played a role in a Montana jury’s award of $248 million in punitive damages to two families of young men killed in a fiery collision involving a 2005 Hyundai Tiburon.
On the 2011 Fourth of July weekend, Olson cousins Trevor, 19, and Tanner, 14, died when their car swerved into the path of an oncoming car. The subsequent head-on collision also killed a young mother riding with her husband and two small children in the second vehicle.
Plaintiffs’ counsel, John Bohyer of Bohyer, Erickson, Beaudetter & Tranel, P.C. and Mark Williams of Williams Law Firm, P.C., argued the collision was caused by the catastrophic failure of a steering knuckle in the Hyundai, resulting in Trevor losing control of the car. The defense response was that the cousins were distracted by fireworks they bought that day and were igniting inside the vehicle.
Noting the Hyundai’s open windows and sun roof as documented in the aftermath of the crash, defense counsel argued that the extension of the driver’s hand through the sun roof helped to corroborate the theory that the cousins were engaged in discharging fireworks and tossing them out through the windows and roof prior to the crash.
In his testimony, Erickson highlighted photographic evidence assembled during his inspection of the Hyundai to show that all the windows and the sunroof were closed when the crash occurred. Erickson established that damage to the sunroof’s structure demonstrated that the impact had caused the roof’s opening, rather than the deliberate operation of the roof’s mechanism by Trevor and Tanner.
“When the sunroof was lifted upward during the accident, it was in the fully-closed, forward position,” Erickson said. “There’s no way for this pin to come out of the track if the sunroof was moved backward. It had to be up near the front where there’s an opening now.”
In summary, Erickson’s analysis revealed that, with the windows and sun roof closed up to the point of impact, the cousins could not have been throwing lit fireworks out through them prior to the crash.
After the verdict against Hyundai was delivered on May 12, 2014, plaintiff’s counsel argued for an award of $160 million. The jury deliberated several hours over a two-day period before stipulating that Hyundai Motor Company must instead pay $150 million in damages to the Olsons, with another $90 million to be paid to the family by Hyundai Motor America.
Boating-mishap victim awarded $21.7 million following testimony powered by Hayes + Associates reconstruction
Posted July 24, 2013
Reconstruction by Hayes & Associates, Inc., on the roles played by occupant dynamics and injury biomechanics in determining impact speed between a jet ski and a larger boat in 2008 contributed to the decision by a Los Angeles jury to award $21.7 million to a 20-year-old woman who suffered a permanent brain injury in the Riverside County incident.
Patrick J. Lee, P.E., was the lead Engineering Associate for the case. Wilson C. “Toby” Hayes, Ph.D., H+A president, testified on behalf of the plaintiff in the July 2013 trial.
The products-defects lawsuit brought by Fabiola Esparza alleged that Polaris Industries Inc., manufacturer of the personal water craft, shared liability with the operator of the larger boat for the serious injuries she sustained in the accident on the Colorado River, leaving her with the mental capacity of a person four times younger and a life-long need for special care.
Reconstruction by Dr. Hayes and his associates demonstrated that on impact, Ms. Esparza, who was one of three passengers on the jet ski, struck the larger vessel and rebounded to strike the side of the Polaris craft, sustaining fractures and a serious head injury.
The plaintiff’s counsel argued that although the jet ski operator’s speed was less than 20 miles per hour and had further slowed when he became aware of the impending impact, the Polaris craft, a 2001 Virage, was defective in that it could not be steered after the operator cut the hand throttle.
Polaris discontinued manufacturing of personal watercraft in 2004.
Hayes + Associates research helps net $16 million judgment for DePuy Synthes in patent suit
Posted June 17, 2013
Research by Hayes+Associates, Inc., a Corvallis, Ore., consulting firm, and testimony by H+A President Wilson C. “Toby” Hayes, Ph.D., helped convince a federal jury in Wilmington, Delaware, that three patents owned by Johnson & Johnson’s (JNJ) DePuy Synthes unit, a maker of artificial spinal-repair products, were infringed by intervertebral-implant products sold by Globus Medical Inc. (GMED). As reported by Bloomberg reporter Phil Milford, on June 14, after a two-week trial on the matter, the jury overseen by U.S. District Judge Leonard Stark awarded Synthes $16 million in damages.
The jury also decided that the DePuy Synthes patents were valid, according to court records.
Globus, based in Audubon, Pennsylvania, was sued in 2011 by DePuy Synthes, the patent owners, who claimed that Globus had willfully infringed the patents-in-suit by making, selling or importing its Independence ALIF System, Coalition ACDF System and InterContinental Plate-Spacer products, and asked the court for injunctive relief and treble damages. They also sought an order that Globus recall and destroy its entire stock of infringing products in the U.S.
Hayes + Associates team helps convince jury of deputy’s version in $1 million wrongful death suit
Posted March 22, 2013
By reconstructing a shooting incident involving a deputy and the man he fatally shot as the latter attempted to flee a rural Oregon residence by car, a team from Hayes + Associates, Inc., established that the deputy’s action, the firing of four pistol shots at the vehicle, was justified, given that the deputy feared for his life.
After testimony by Wilson C. Hayes, Ph.D., H + A president, the Linn County jury found Deputy David Francis justified in a $1 million wrongful death lawsuit brought by the family of the decedent, Albany resident Jesse Drew Seeley. Seeley’s family alleged that Seeley was merely trying to leave the rural Brownsville driveway he drove into as Deputy Francis was on scene investigating an unrelated report of a prowler in November 2010.
When Deputy Francis approached the car, Seeley drove directly toward him. As the deputy pulled the pistol and shouted for the driver to stop, Seeley accelerated sharply, scattering gravel. Deputy Francis fired first through the car’s windshield, barely stepping aside as the car passed him. Seeley was struck twice in the torso and died minutes later.
Attorney Jens Schmidt, who represented the county, argued that Seeley tried to use his car as a weapon, and that Deputy Francis had responded with deadly force in self-defense. It was later determined that Seeley, who had a criminal history of drug use and theft, had methamphetamine in his system on the night of the shooting.
An analysis performed by Dr. Hayes and his associates Erik D. Power, P.E., and Jeremy J. Bauer, Ph.D., revealed that Deputy Francis was less than nine feet in front of Seeley’s car when Seeley accelerated and the deputy fired the first shot. The H + A team’s reconstruction demonstrated that all four shots were fired in less than 2.5 seconds.
The jury deliberated less than two hours before finding for the defense
Railroad worker awarded $6 million following testimony grounded in Hayes + Associates research
Posted March 15, 2013
Testimony from Wilson C. Hayes, Ph.D., president of Hayes + Associates, Inc., played an important role in a federal jury’s decision to award $6 million to a railroad worker from Ellensburg, WA, after US District Court Judge Thomas Leighton found his employer, the Columbia Basin Railroad Co., liable for the severe head injuries the worker sustained while at work after dark in a Sunnyside rail yard.
Robert Shannon, who was 47 at the time of the December 2010 event, was coupling grain cars in the rail yard when a handbrake on a train car apparently failed, according to his attorney, Fred Bremseth, initiating its downhill propulsion into Mr. Shannon, whose back was turned to the car. After an initial diagnosis of a broken elbow and mild concussion, Mr. Shannon’s condition soon deteriorated to the point that he could speak only with difficulty and was unable to walk.
Research conducted by Dr. Hayes and his associate, Patrick Lee, incorporated the laws of physics and biomechanics to demonstrate the speed at which the rail car struck Shannon and the resulting motions of his body. Dr. Hayes’ reconstruction showed that Mr. Shannon sustained impact at a speed of 6.5 miles per hour to his elbow and low back, causing his upper torso, neck, and head to be snapped backward, knocking him off balance, and resulting in Mr. Shannon falling to his knees. Working backward from the initial impact, Dr. Hayes demonstrated that the loads on Mr. Shannon’s head, neck, and low back were above established injury-tolerance thresholds, resulting in his severely debilitating head injury.
Columbia Basin Railroad president Brig Temple confirmed the railroad’s insurer will forgo an appeal in favor of paying the award to Mr. Shannon.
Hayes + Associates research contributes to $85 million verdict restoration in patent infringement case
Posted January 16, 2013
In a decision handed down by the U.S. Court of Appeals for the Federal Circuit on January 16, 2013, an $85 million jury verdict over patent infringement against Arthrex, Inc., overturned in June 2011 by a lower court in Oregon, was reinstated in favor of Smith & Nephew, Inc.
Research undertaken by a team at Hayes + Associates, Inc. played a pivotal role in Smith & Nephew’s original victory, in which a jury found in favor of the company’s allegation that Arthrex was fully aware of steps used by its anchoring devices, marketed for use in shoulder surgeries, that were similar to those covered by Smith & Nephew’s patent. In 2011, Wilson C. Hayes, Ph.D., president of H+A, and his associates conducted a series of experiments in the company’s Corvallis, Oregon laboratory demonstrating that Arthrex suture anchors Bio-SutureTak, PEEK SutureTak, PushLock and Bio-PushLock violated a patent exclusively licensed to Smith & Nephew.
As reported by Mass Device (www.massdevice.com), a medical device industry Web site, the case, first filed in 2004, hinged on the interpretation of “lodging” and “ready to secure tissue” from the patent language. While Smith & Nephew maintained that the language describes a surgical anchor with resilience sufficient to keep it in the bone hole until it was tensioned, Arthrex argued that the anchor must be able to remain in place during the entire surgical procedure. U.S. District Court Judge Michael Mosman agreed with Arthrex in what was the third trial of the case.
The decision detailing the revival of the 2011 verdict stated that the court found “no support in the intrinsic record to require the ‘lodging’ to ’withstand all the forces of surgery’": In other words, the surgeon’s tug, while possibly necessary to complete the surgery, is not part of what is claimed. . . . Nothing in the claim language, the prosecution history, or our precedent suggests that lodging must be sufficient to withstand all the forces of surgery. Instead, lodging, as claimed, only relates to how the anchor stays in place after being initially pressed into the bone. Thus the court erred in construing the claims to require lodging to be sufficient to withstand all the forces of surgery.
In overturning the Oregon court’s decision, the Federal Circuit court sends the case back for reconsideration by Judge Mosman.
Hayes + Associates plays pivotal role in child abuse murder trial
Posted December 7, 2012
Research conducted by a team at Hayes + Associates, Inc. (http://www.hayesassoc.com) , a Corvallis, OR, consulting firm specializing in injury biomechanics, was instrumental in the return of a guilty verdict by a Washington state jury in the October 2012 trial of a 29-year-old woman accused of killing her boyfriend’s three-year-old daughter.
With analysis founded in the laws of physics, fall biomechanics and anatomy, testimony by Wilson C. Hayes, Ph.D., the firm’s president, demonstrated that Autumn Franks’ fatal head injuries were caused not by a fall from a couch precipitated by the family’s pit bull, but most likely by abuse inflicted by Leanne Bechtel, who was 24 and the child’s live-in caregiver at the time of the 2008 assault.
Bechtel had consistently maintained that the family’s overexcited family dog, Dozer, accidentally knocked the girl off the couch while she was home alone with Autumn, and that, after she landed on her head, Bechtel was unable to revive her. The reconstruction of the alleged event by Hayes + Associates demonstrated that the child’s massive skull fracture would not have resulted from her short fall onto a carpeted surface.
Coverage by Tacoma’s News Tribune noted that “every doctor who testified on behalf of the state – a list that included the county’s former medical examiner and the emergency room doctors who treated Autumn – said it was their opinion the girl died from trauma brought on by a violent assault.” Pierce County Deputy Prosecuting Attorney Lori Kooiman’s closing remarks focused on the “one in a million chance” that Autumn’s injuries happened as Bechtel had described. As Kooiman told the jury, the girl’s “constellation of injuries,” injuries most often seen in car accident victims, vividly told the story without further need for prosecutorial explanation.
After hearing testimony by Dr. Hayes, medical experts, and attending doctors called by the state, the jury agreed, rejecting Bechtel’s narrative of the event and finding her guilty of second-degree murder. She was sentenced November 16 to 19½ years in prison.
Hayes testimony supports seatbelt contentions in Dreyer Babich $73 M van rollover verdict vs Ford
Posted November 16, 2011
From businesswire.com, “After seven weeks of testimony and five days of deliberation a California jury returned a verdict for victims of a rollover crash represented by Roger A. Dreyer of the Dreyer Babich Buccola and Wood law firm and Christine Spagnoli of the Greene, Broillet & Wheeler law firm of over $70 million, including compensatory damages for the family of Tony Mauro, a passenger who died in the crash, in the amount of $17.5 million. The verdict is the largest in an automotive product case this year.”
Hayes Expert Testimony Helps Convict Dodge City KS Man in Murder of Infant
Posted August 25, 2011
A Ford County jury convicted a man of killing his girlfriend’s daughter. Dr. Hayes’ testimony was summarized on dodgeglobe.com as follows:
“An expert in biomechanics and injury reconstruction said Joselyn could not have been injured by De La Torre falling on her. Dr. Wilson Hayes said people whose reflexes are intact do not fall in the way De La Torre described…people can rotate their bodies while falling, but they cannot change direction. ‘You start to fall, you’ve got to go in the same direction, although you can twist to protect what you’re holding,’ he said. Hayes said a direct fall onto Joselyn was not consistent with the laws of physics and the biomechanics of tripping and falling. He added that the bruises on her body did not fit De La Torre’s explanation. ‘They simply were not caused by the single fall he (De La Torre) described, for all the reasons I have noted,’ Hayes said.”
H+A Analysis & Testimony Part of $30 Million Verdict for Victim
Posted June 8, 2011
“A new boat design, sold as the biggest on the market, recently was ruled defective—and at fault—by a jury in a stunning rejection of the manufacturer’s defense, awarding more than $30 million to a 27 year catastrophically injured young woman.”
Defendant's guilty verdict in assault credited largely to Dr. Hayes' biomechanics testimony
Posted March 6, 2011
Defendant’s guilty verdict in assault w/deadly weapon credited largely to Dr. Hayes’ biomechanics testimony. “Hayes’ impressive credentials and testimony that employed the use of physics and biomechanics, was the state’s best shot at getting a guilty verdict…” Full Story
Committed to a Cure: Hayes + Associates Signs on as Presenting Sponsor for the JDRF Hope Gala through 2014
Posted April 24, 2010
Hayes + Associates is proud to have been the Presenting Sponsor of the 2010 Juvenile Diabetes Research Foundation (JDRF) Hope Gala. As part of the worldwide commitment to finding a cure to Type 1 diabetes, Hayes+Associates has signed on to be the Presenting Sponsor of the JDRF Hope Gala through 2014.
Case Questions Lead to Research Into Safer Toys
Posted August 10, 2007
A recently completed case brought to light just how unsafe a child’s toy can be. A 5 year old child fell on a sharp plastic asparagus spear (provided as an “educational” toy) that he was holding in his mouth. The sharp point of the spear went through the back of his throat, lacerated his carotid artery and caused a stroke. Hayes + Associates, Inc., in collaboration with Triodyne, Inc., sought to make toy designers and users more aware of puncture/impaling hazards and to identify design alternatives to prevent similar injuries. The research was published in the proceedings of the 2005 ASME International Mechanical Engineering Congress and RD&D Expo and can be downloaded using the link to the left.