As everyone who watches television must be painfully aware, certain lawyers seek to recruit clients by advertising alleged product defects and soliciting anyone who believes that they might possibly have been injured by these products. Many of us in the law biz consider such promotion to be distasteful at best and recall a time when such activities were considered unethical, if not illegal.
It is, therefore, with a large measure of approval that we can report on an instance where the manufacturer, which was the target of such a program, has struck back at its tormentors. (Zimmer, Inc. v. Ari Kresch, Kresch/Oliver PLLC, Kresch Legal Services, P.L.C., Pulaski & Middleman, L.L.C., and Weller, Green, Toups & Terrell, L.L.P.)
Kresch, his law firms (two) and two other law firms embarked upon a multi-media blitz, seeking to enlist clients who had received NexGen® Knee System implants and who succumbed to the idea, implanted by the lawyers, that they had suffered an injury which entitled them to compensation for heretofore unrealized suffering.
Zimmer, determined to protect its reputation and good name, as well as its pocketbook, fought back. It filed suit against Kresch and the several law firms, alleging defamation, tortious interference with business relationships, false advertising, product disparagement, cyber squatting, and trademark infringement. In its complaint, Zimmer asserts that the advertisements used by the defendants “falsely extrapolate the reported result” from a report of the American Academy of Orthopedic Surgeons and falsely state that there has been a recall of the NexGen® Knee System.
Admittedly, a complaint states only one side – in this case, Zimmer’s side – of an argument and, admittedly, the defendants have not yet responded to Zimmer’s allegations. Nevertheless, we find it refreshing to find a manufacturer responding vigorously to what can only be described as an assault by innuendo. Clearly, this is a case worth watching.