FORT WORTH, Texas (Legal Newsline) - Last week, a Texas attorney who says he is “intimately familiar” with litigation over inferior vena cava filters, or IVCs, filed a proposed class action lawsuit against an Arizona-based law firm for allegedly making unsolicited phone calls to line up potential clients.
Plaintiff John R. MacLean, also known as Scotty MacLean, filed his lawsuit against defendants Arentz Law Group and The Johnston Law Group in the U.S. District Court for the Northern District of Texas, Fort Worth Division, Aug. 25.
MacLean, who received one of the unsolicited calls himself, accuses the firms of ignoring the laws on soliciting clients.
“Sadly, there are attorneys and law firms that ignore ethical rules and barratry laws and use any means necessary in the mad dash to grab as many clients as they can,” he wrote in his 14-page complaint. “These firms blatantly and with complete disregard for the law (and at any cost) unethically and illegally solicit clients.”
According to MacLean’s action, each state has established barratry -- or litigation for the purpose of harassment or profit -- statutes to protect their citizens from law firms that solicit clients the wrong way.
Many of these states, including Texas, have enacted laws that impose severe penalties for attorneys and firms that engage in illegal solicitation and barratry, with both criminal and civil ramifications.
Often, MacLean noted, these barratry statutes are incorporated into the state’s professional ethics standards.
“Texas is a state that takes the barratry statutes seriously,” the plaintiff wrote.
IVCs are medical devices that were marketed to surgeons and patients for implantation in the inferior vena cava, which is a large vein that carries deoxygenated blood from the lower and middle body into the right atrium of the heart.
Manufacturers of the device represented that it would minimize the dangerous effects of blood clots in patients prone to clot. As a result, hundreds of thousands of IVCs have been implanted in patients nationwide.
But complications from the implantation of the filters soon began to occur, eventually prompting the U.S. Food and Drug Administration to issue a warning that IVCs posed risks of filter fracture, device migration and organ perforation.
In conjunction with the reported complications and injuries, plaintiffs began filing lawsuits across the country claiming IVCs had caused harm and death.
According to MacLean’s lawsuit, plaintiffs have filed lawsuits against various manufacturers in both federal and state courts and, as a result of the number of filings in the federal court system, the U.S. Judicial Panel on Multidistrict Litigation, or MDL, consolidated lawsuits filed against Cook Medical Inc. in the U.S. District Court for the Southern District of Indiana, otherwise known as MDL 2570.
Additionally, the panel consolidated lawsuits against C.R. Bard Inc. in the U.S. District Court District of Arizona, otherwise known as MDL 2641.
“The Defendants initiated a massive robo-call campaign indiscriminately contacting Texans all over the state with unsolicited automated telephone calls,” MacLean wrote of Arentz and Johnston.
MacLean says he was called at his home at 9:45 a.m. July 17. The caller ID identified the call as coming from IVC Claims Center 520-210-0163.
As a licensed Texas attorney “intimately familiar” with IVC litigation -- he has been appointed to the Plaintiff’s Steering Committee in MDL 2570 -- MacLean decided to answer the phone. An automated voice asked if he or anyone he knew had been harmed by an IVC filter.
MacLean says he “immediately knew” it was an illegal solicitation in violation of Texas law, but decided to “play along” even though he had never been implanted with an IVC filter.
According to his lawsuit, he was prompted to push -- he believes No. 1 -- which directed him to a “live person” where a conversation about his “potential claim” ensued.
Eventually, MacLean says he asked the individual if a Texas lawyer would handle his case and he was told that defendant Christopher Kyle Johnston from Louisiana would be his lawyer.
MacLean then indicated he wanted to discuss the matter with his wife and asked for a return number to call should he decide to retain counsel. He was directed to call 800-305-6000 -- the same number listed for Arentz Law Group.
MacLean contends there are more than 1,000 similarly situated members in the class. They include:
“All persons in Texas who: received an unsolicited telephone call from the Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendant’s behalf regarding legal representation in the IVC litigation.”
He asserts that the class should be broken into two sub-classes:
1) All persons who received an unsolicited telephone call and entered into a contract with the defendants and/or their affiliates, agents, and/or other persons or entities acting on the defendant’s behalf; and
2) All persons who received an unsolicited telephone call but did not entered into a contract with the defendants and/or their affiliates, agents, and/or other persons or entities acting on the defendant’s behalf.
MacLean contends the defendants violated various sections of the Texas Penal Code, in addition to the Texas Disciplinary Rules of Professional Conduct, in “trying to obtain an economic benefit for themselves by soliciting employment, by telephone for themselves or another.”
“(T)he Defendants, as lawyers, sought professional employment by telephone contact concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer’s doing so is the lawyer's pecuniary gain,” the attorney-plaintiff wrote.
MacLean seeks an award of $10,000 in damages for each and every unsolicited telephone call made in violation of Texas Government Code for each class member, plus attorneys’ fees and injunctive relief.
Fort Worth attorney Matthew W. Bobo is representing the plaintiff.
Arentz could not be reached for comment on the proposed class action.
The firm, which last year launched a nationwide campaign to inform those allegedly harmed by the filters of their legal rights, has an entire section on its website devoted to the IVC litigation.
“IVC filters are small devices implanted in patients at risk for a pulmonary embolism. The filters are designed to prevent blood clots from traveling to the lungs,” said Robert Arentz, founder of the Arentz Law Group. “Claims against Bard and Cook involve incidents of retrievable IVC filters fracturing, moving out of place, puncturing the vena cava or causing other internal injuries.”
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.