Most of us pay our bills on time. If we break a neighbor’s rake, we promptly purchase a replacement. If our child dumps fruit punch on a friend’s carpet, we pay to have it cleaned. In fact, we don’t really think about these unwritten rules often; it’s just the right thing to do, so most of us do it instinctually: if we cause damage, we pay for the damage. But too often companies refuse to pay fair settlements to resolve product failure cases, even in the face of a mountain of evidence that (1) the product clearly failed and (2) the failure physically injured the person. For example, let’s say a sixty-eight year old retired schoolteacher learns her metal-on-metal artificial hip implant has failed; her doctor tells her that, in addition to the pain she feels in her hip and leg, she now suffers from dangerously high cobalt and chromium levels (a condition called “metallosis”). Thousands of other injured people have similar claims, but the manufacturer of the failed hip product simply won’t pay. Why not?

Well, I can’t know all the reasons, but let’s look at a few theories:

Companies Don’t Like to Pay Settlements

Companies do not like to pay claims, period. Companies are in the business of making money, not paying out money. Corporations are under enormous pressure to maximize value for their stakeholders, primarily those people who buy their stock. Paying out two billion dollars in settlements for a failed artificial hip is never good for the bottom line.

Companies Can Get Away with Not Paying

The playbook is no secret: when a company first receives complaints about a failing product, it almost always denies that the product is defective. When scholarly, peer-reviewed studies establish that the product is defective, the company invariably commissions its own studies on the product, and often those studies conclude that the product is safe or that the dangers have not been proven. When litigation begins, the company defends itself vigorously, because it is always the case that the company has much more money than any injured plaintiff and can use its superior financial position to grind down injured plaintiffs, even thousands of them.

Settlement Delays Are Profitable

Let’s say a defective product injures 12,000 people, and the company negotiated three billion dollars in a global settlement for the injured plaintiffs. And let’s say the company could pay today or, through artful delays, two years from now. Eight percent interest on three billion dollars for two years is four hundred and eighty million dollars ($480,000,000). That’s real money. If a corporation can delay settlement discussions for two or four or six years before finally paying out claims, the company comes out ahead.

Another positive result of delays is this: some injured people just give up. Some plaintiffs may walk away, or accept a reduced offer, or lose interest, or may even grow old and die. There is no question that justice delayed is justice denied for injured people. Corporations understand this.

One Example: Johnson & Johnson

Recently, Johnson & Johnson has taken a harder line against paying settlements. One Johnson & Johnson defense attorney said that J&J is inundated with lawsuits and that if the company paid every claim it could get a reputation as an “easy mark.” In 2018 alone, J&J spent two billion dollars on settlements and attorneys’ fees. According to reports, J&J is defending 100,000 lawsuits involving hip implants, surgical mesh, baby powder, prescription drugs, and other product cases. One school of thought holds that the massive number of pending lawsuits is actually a deterrent to settlement for J&J.

Medical device and drug companies like J&J can get burned with aggressive no-settlement policies. DePuy Orthopaedics, owned by J&J, lost several huge verdicts in the DePuy Pinnacle hip litigation. And last year a jury awarded damages of $4.7 billion to a group of women who used J&J’s baby powder and were later diagnosed with cancer. There is no question that J&J could have settled with these 22 women years ago for a fraction of that jury verdict. (Of course, J&J has appealed.)

Then there is the loss of goodwill in this scorched-earth litigation strategy. According to a report in Law360, in 2016 J&J was considered the sixth most reputable company in the United States. By 2018 it had dropped out of the top 100. Goodwill matters.

Finally, one important reason for companies like Johnson & Johnson to pay valid claims is this: it is the right thing to do. When corporations offer safe products that improve people’s lives, they should make a lot of money selling the products. But when one of their products turns out to be flawed and harmful, companies should want to do the right thing and pay all the valid claims, promptly.

Note: References to individuals in this article are fictional and hypothetical and do not represent any current or former clients, or any other person. Information about Johnson & Johnson was distilled from online news sources, including Law360, which own their content.

So the FDA gives the multi-billion dollar corporation 510(k) approval to sell the device. In the first year the company sells one billion dollars’ worth of the device. In the second year it sells $1.5 billion in new devices, but it also begins to receive an alarming number of “adverse event” reports. This means patients are reporting problems and injuries after receiving the device. The company undertakes an internal study but does not report its findings to the FDA. In the third year it sells even more devices, but by now hundreds of adverse reports are rolling in. The injuries finally get the attention of the FDA, and the company reluctantly hands over its data on the many serious injuries caused by the new device.

In the fourth year a woman with the implanted device is forced to undergo “revision surgery” to remove the device, and her recovery is lengthy and painful. She calls me and tells me her story. It is awful. She was once a competitive tennis player, but now she walks with a cane. She hasn’t played tennis in two years. She had to take time away from her job. Even with decent health insurance she has thousands of dollars in out-of-pocket medical bills related to the failure of the device.

I take her case. I file a lawsuit in the new “multidistrict litigation” organized to handle the hundreds of cases involving injuries from this new medical device. I move the case along, handle the discovery and make sure my client’s case complies with all Case Management Orders from the MDL judge. Eventually we secure a good settlement for my client.

Later, at a press conference, a spokesperson for the corporation breezily refers to lawyers as ambulance chasers.

So after that narrative of events, I am the ambulance chaser?

As John McEnroe might scream, “you cannot be serious!”

I understand in this age of constant spin, the primary defense to a bad act is to attack. We see it in business; we see it in politics. We see it so often on social media it seems social media was invented for the purpose. And it is very frustrating. But that’s why it is vitally important not to let agents of spin control how you understand any subject. If a corporation can manipulate you into considering whether I am an “ambulance chaser,” it does not have to defend itself for introducing a harmful medical device into the marketplace, seriously hurting thousands of people.

Fighting spin is necessary to appreciate the excellent work so many plaintiffs’ lawyers are doing for injured people across the country.

There is no doubt there are unscrupulous lawyers out there. Some are opportunistic. A few lawyers wade into a new area of law simply because it appears profitable. Some lawyers produce ridiculous and creepy television commercials. A few may even hand out business cards at hospitals like Danny DeVito did in The Rainmaker. I understand that. And I don’t like it. It hurts all lawyers when a few lawyers do incompetent work or play fast and loose with ethics rules.

But the large majority of plaintiffs’ lawyers are doing good work for their clients. And in a world where the 510(k) fast-track approval pathway exists, it is critically important that good plaintiffs’ lawyers keep holding companies accountable for selling flawed, defective medical devices. In fact, it is one of the only defenses a patient has against unscrupulous device manufacturers.

So if an “ambulance chaser” is considered this way, then count me as a proud ambulance chaser. Because taken in this context, ambulance chasers are consumer protection heroes.

This is the question I get most often from people who have hired a lawyer but are not happy with the legal representation. Above almost everything else, good communication is the key to a healthy attorney-client relationship. I try not to be the kind of lawyer who doesn’t return phone calls. I don’t want any of my clients talking to another lawyer about me. And I understand: every client deserves to be updated regularly on his or her case.

Let’s look at some reasons why your lawyer may not be returning your calls:

• Your lawyer is doing lawyer things.

Every professional is busy. I won’t tell you that lawyers are busier than doctors or stonemasons or accountants, but most lawyers are busy too. And sometimes very busy. When I am on a court deadline, it feels as if I go down in a hole. Everything else is blocked out. For example, when I am writing a legal brief for a client to support a motion for summary judgment, I have to do what Cal Newport calls “deep work.” The legal brief may be a thirty or forty-page legal analysis applying relevant law to the facts of my client’s case. It is complex. It is not easy. For me to do it right, I have to shut out everything else. On these days, I simply cannot pull another file and call another client with an update on her case. I just can’t get to it that day.

The good news is that when it comes time for me to prepare a complaint or a motion or a legal brief for the client whose call I could not return, I will do “deep work” for that client and shut out everything else. This is how the practice of law is supposed to work. So often when a lawyer does not return your call for a few days it may simply mean your lawyer is busy getting some important work done in your case or in another client’s case.

• There is nothing going on with your case.

The work of civil litigation comes in waves. There are weeks when I spend day after day preparing legal documents or engaged in depositions for one individual case, and then weeks can go by with no activity at all. I usually call a client during a week of intense activity (“Just wanted you to know we filed your lawsuit in the multi-district litigation yesterday. Everything went smoothly.”), but I may not call a client for some time if there has been no meaningful activity. Still, I understand that this practice may be a mistake, especially for some clients who need more frequent attorney contact. I try to perceive which clients need regular check-ins, even if there is nothing to report, and which clients can absorb a few weeks with no communication.

I always tell clients: you call me whenever you need to talk to me, but if I don’t call you it’s because we are between deadlines and there is nothing going on at the moment with your case. But I am always watching over your case, even in periods of inactivity.

• You call twice a day.

Not really. OK, rarely, but it happens. Most clients understand there are times when big events are occurring and communication is essential (“we reached a settlement!” or “you won your appeal!”), and times when nothing is going on and no communication is acceptable. As I have written in this blog many times, product liability litigation is a slow moving train, particularly with mass torts such as artificial hips or prescription drugs. These cases take years to resolve. And for much of that time, no meaningful activity is occurring in your case.

I would likely lose my law license if I called every one of my clients every day. Even though I make a point not to represent too many clients at any one time, I have enough active cases that if I called each client every day I would simply not be able to complete the legal work required to move each case forward. There simply would not be enough time each day.

If you need weekly or daily check-ins about your case, let your attorney know up front (“I expect to hear from you twice each week . . . “). If the attorney cannot meet that standard he or she should let you know up front. And maybe you can work out a call schedule that works for both of you: “Unless I am in court, I will call you each Thursday with an update.”

• You hired an attorney from a national marketing firm.

These guys get to you before the rest of us. You see them in afternoon television commercials, in online ads, in your local newspaper. (It is hard for me to compete with them.) When you call that 800 number you get an intake phone person who is often not a member of the firm but a separate paid contractor. The intake person will write up your story, confirm it is a promising “lead,” and if viable will send it to a more thorough review person at the marketing “firm.” Once the medical records “check out,” the marketing firm may refer the case to one of many participating law firms across the country who will take on the case and pay a referral fee to the marketing firm who took your original call. That will likely be the last time you hear from the “firm” who caught your eye in a late-night advertisement.

I don’t mean to disparage this crowd of marketing firms, but I caution you to be careful in choosing your law firm. The advertising group may not be your best fit.

• Your lawyer doesn’t want to talk to you. Or maybe doesn’t even know who you are.

This is the worst reason. Let’s say a firm pays referral fees to obtain dozens or even hundreds of product failure cases. This firm is employing many paralegals and attorneys to move cases forward as quickly as possible. Returning a client’s phone call is not an efficient use of their time. Often, if you get a return call at all it is a paralegal assigned to the case, and often this paralegal cannot answer many of the legal questions you may have. Try not to become just another number in a law firm’s “inventory.” Slow down and choose a law firm and your lawyer carefully.

And if it gets really bad, you may be forced to fire your attorney and hire another one. This is a delicate subject, and I would say be careful and deliberate when hiring or firing a law firm.

If you want to talk to an actual product liability lawyer, give me a call any time: (919) 830-5602.

You scratch my back, I’ll scratch yours. Favors are often exchanged among friends and family. But what most people don’t know, or don’t want to know, is that questionable “favors” are also exchanged in professional and business relationships. Over the years, there have been reports that favors, or benefits, are too often exchanged between drug manufacturers and doctors and hospitals who prescribe medicines.

Recent studies have explored this relationship and compared data to see if drug makers are, effectively, paying doctors to prescribe their medications.

In 2010, the Affordable Care Act included a section called the Physician Payment Sunshine Act. This Act requires drug and device manufacturers to report any and all payments made to physicians and hospitals. Since 2013, 40.74 million records have been published and $24.92 billion dollars have been given to doctors and hospitals from drug and device manufacturers. The Sunshine Act has been successful at exposing these payments.

Open Payments is a website that provides a listing of doctors who receive money or incentives from drug manufacturers. The website is very easy to use; you can visit the website and simply type the name of a doctor or hospital in the search bar and see if they are receiving money – how much, from whom, and when.

Recently, UNC-Chapel Hill conducted a study to determine if there was a correlation between the amount of money doctors received from drug companies and the frequency with which doctors prescribe that company’s drugs. Put another way – are doctors more likely to prescribe a company’s drug if that company is giving them money?

The study used information and data from the Open Payments website as well as from the Centers for Medicare & Medicaid Services to answer that question. Turns out, the answer is “yes.” Focusing specifically on cancer doctors, the research study found that there are “increased odds of prescribing a manufacturer’s drug among physicians receiving payments.”

Unfortunately, this study is not the first of its kind. Research has shown this correlation, an increased likelihood of prescribing a company’s medicine if that company pays the doctor or hospital, for many different types of medications.

For example, in 2016, a similar study was performed, this time focusing on cholesterol medicines. The same conclusion was made – manufacturer payments to doctors and hospitals correspond with higher rates of prescribing that manufacturer’s cholesterol medicine.

While all medicines are supposed to help patients, there is a potential concern that doctors might not be prescribing a medicine that is best for the patient, but rather prescribing a medicine that is best for their bank account.

If you are wondering if your doctor is receiving payments for prescribing specific drugs, ask your doctor or go to the Open Payments website. As I always advise, it is important to do your homework on your doctor, your medications, your medical devices, everything related to your health. (Of course, you should also do your homework on your choice of attorney as well.) If you would like to discuss any prescription medication that gives you concern, give me a call and we can sort it out.

I get the impulse to “do it yourself.” Prior to attending law school, I sued my landlord in small claims court for the return of my security deposit (I won). I also tried to replace the steering box in my 1974 Ford Bronco (that didn’t turn out so well).

These phone calls from pro se litigants are often interesting. Plainly some people have developed a distrust of lawyers. For others, the thought of paying legal fees for a good attorney seems unpleasant and undesirable, even overwhelming. Some may be trying to litigate their claim “on the cheap.” But the real question is: does it work? Can a person represent himself or herself successfully in a product liability injury case?

more Do You Really Need a Lawyer?

Here’s the quick answer: No. Technically a person does not need a lawyer to bring any civil action. You can always represent yourself (as an individual) in a lawsuit.

The pro se litigant has a long road. If you’ve read my blog at all, you know how complicated it is to identify a viable product liability case, to gather (and pay for) the relevant medical records, to draft the complaint, to make all the proper case filings, to meet all deadlines from the multidistrict litigation’s case management orders, and to position your case for trial or to negotiate for the highest possible settlement. It’s a slog.

Can a pro se litigant handle it? It’s possible. But you should expect to spend hundreds of hours researching the claim, reading court orders, double and triple-checking deadlines and court filings. One misstep and the case can be dismissed. I would say that the life of a pro se litigant is stressful and difficult at best, and the defense lawyers representing the companies will know immediately that they are dealing with a pro se plaintiff and will reduce settlement offers accordingly. It’s just the way of the (defense) world.

It’s impossible to say whether the defendants will make an offer to a pro se plaintiff that is less than net amount an injured person represented by a competent attorney could expect, but in many cases that is exactly what happens. The pro se plaintiff often gets much less in settlement.

So if you choose to represent yourself, be careful, and be ready to do a boatload of research and work on your case.

By the way, here’s another answer: you do not need a bad lawyer. You should always take the time to research the lawyers and the law firms you are considering. I wrote about this subject some time ago, which you can read here. But my answer is that you do not want to hire a bad lawyer.

So the real question then becomes:

Will a Competent Lawyer Improve My Case Result?

I am sure some law professor at some point has done a study of the results obtained by pro se litigants: the wins and the losses and the weak settlements and the strong settlements. I have not done such a study. But I have practiced law for many years, and I am quite certain a good lawyer who is knowledgeable about the subject matter will get good results for his or her client, and often considerably better results than the client would get on her own.

Did I Miss Something?

Beyond that, the lawyer is responsible for all the headaches and all the responsibilities of the litigation, from start to finish. If there is a deadline, the lawyer must know it and must comply with all filings by the deadlines. Your lawyer will let you know if you need to make a litigation decision, and will inform you of the scheduled date for your deposition, and will let you know of upcoming hearings. You will be freed from the stress and anxiety and chaos of litigating your own case. You will not wake up in the middle of the night and ask: did I miss something today? The psychic benefits of hiring a competent lawyer can be substantial. Instead of poring over discovery, you can do things like focus on your surgery rehabilitation, or read a book, or take a nap.

But Lawyers Are Expensive!

Lawyers are not cheap (and if they are they are probably not worth hiring). But lawyers are expensive the way surgeons and hospitals are expensive, the way a comfortable, reliable car can be expensive.

In a product liability injury case, the minefields are everywhere. After all, you are suing huge corporations who make billions of dollars each year, often on the product that harmed you. These corporations have truckloads of money to spend on armies of dark-suited lawyers, all working feverishly to make your case go away.

So at the end of the day, I’d say it is a dangerous game to represent yourself in any litigation, but especially in complex product liability litigation. Hire a good lawyer, and if your case has value your lawyer will find the value.

As always, good luck.

Note: this article is not legal advice.

If you’ve kept up with politics even a little bit, you know how much gridlock exists in Congress. It’s amazing that anything can get done in Washington. However, a new law called the 21^st Century Cures Act just passed with tremendous bipartisan support; this law must be really good, right?

21^st Century Cures Act: The Good

The 21^st Century Cures Act has the potential to save lives. For instance, it will provide funding for cancer research, fight painkiller drug abuse, advance Alzheimer’s research and improve mental health treatments.

Specifically, the new law provides $4.8 billion in funding for the National Institutes of Health, $1.6 billion for brain disease research and $1 billion in grants to help states tackle opioid abuse.

Another touted benefit of this new law are provisions requiring the Food and Drug Administration (FDA) to speed up the approval process for medical treatments so patients can get them sooner.

21^st Century Cures Act: The Bad

The biggest potential problem with the 21^st Century Cures Act is that new medical treatments might receive FDA approval on an expedited schedule. While this sounds great in theory, patients should be extremely wary because drugs and medical devices available for treatment may not have been thoroughly tested for safety and effectiveness. To explain why this may be the case, let’s give a brief background of the FDA and how clinical trials work.

The FDA and Clinical Trials

Before the FDA, companies could sell products with almost any claim they wanted, without having to prove their product actually worked or was safe. Today, one of the FDA’s jobs is to ensure that medical treatments work as claimed and do so in a safe manner. In order to do this, clinical trials are necessary.

Clinical trials usually exist in three phases, with the first phase involving a small number of test subjects to figure out dosing and make sure there aren’t any really bad side effects.

Phase two includes more test subjects and the medical treatment is actually tested to see if it works. Assuming it works with manageable complications, the clinical trial advances to phase three.

Phase three includes an even larger number of test subjects, usually numbering in the thousands. At this stage, the medical treatment is further tested to make sure it works, especially in comparison to similar treatments already available on the market. Most importantly, phase three trials look for complications and side effects.

Occasionally a fourth phase will be run to examine a medical treatment’s long-term effects and see if the medical treatment can be used in high-risk patients, such as children.

Phases two and three are the most important because they ensure the effectiveness and safety of a medical treatment. Because of their importance, special testing procedures must be followed for a multitude of reasons, including looking out for the placebo effect.

The placebo effect refers to the phenomenon where a patient will believe a treatment they are receiving is making them better, even though they are receiving no real treatment at all. An example of the placebo effect is when someone takes a sugar pill, but still believes the pill is doing more than just giving them a dose of sugar.

Monitoring the placebo effect is very important for determining if a medical treatment works or not. When using a placebo, researchers can make sure test subjects who feel better are feeling better because the treatment actually works, not because they think it works.

The 21^st Century Cures Act is designed to bypass some of these special testing procedures and clinical trial phases. The legislation directs the F.D.A. to consider the “least burdensome” means of demonstrating their safety. For example, under the new rules, clinical trials don’t have to have as many test subjects. Additionally, when determining if a medical treatment works or has any side effects, the FDA can rely on “real world evidence” instead of strictly controlled clinical test results. In some instances, this “real world evidence” will basically amount to patient testimonials. This is not the scientific process necessary to make sure medical treatments work and are safe.

What Does This All Mean?

To put things simply, it means medical treatments will become available more quickly, but without proper testing. Some might think speeding up the approval process is a good thing, since all those clinical trials and studies aren’t really necessary. You would be wrong.

Ever heard of Essure? It is a contraceptive device for women that is now known to have serious complications, such as severe pelvic pain, device disintegration and puncturing of Fallopian tubes. And it turns out that it was approved by the FDA using a special fast-track review process. You can look through my site to find many flawed medical devices that were approved pursuant to the fast-track 510(k) process.

Perhaps the benefits of getting medical treatments to market faster will outweigh the reduced testing and oversight by the FDA. I hope so. But additional injuries are very possible, so patients need to be extra cautious with these new lower testing standards.

The Free Consultation Has Very Limited Value

Let’s start with the hourly-rate case. If the legal representation will ultimately be subject to an hourly fee payment arrangement, this “free consultation” will not likely save you much or any money. First, some lawyers allow thirty minutes “free” and then announce, “if we go further I’ll need to charge you my hourly rate.” But even if the attorney sits patiently and listens carefully to you explain your case for forty-five minutes or an hour, it is unlikely the attorney will be able to give you sound legal advice at that point. Quite simply, a legal dispute is complex (otherwise you could have handled it yourself). Even a basic breach of contract action will usually have two conflicting stories, and behind those stories will sit documents: agreements, letters, invoices, emails, texts, witness statements, all of which must be reviewed carefully and analyzed. So a one-hour consultation usually gives the attorney a surface understanding of your issues. Imagine if a doctor offered a “free consultation,” and after a twenty-minute visit announced, “I understand completely. We must perform surgery and remove one part of your lung.” It doesn’t work that way. Instead, the doctor listens to your story (and charges an office visit fee), then orders the appropriate tests (more fees), and finally makes a decision on proper treatment (again, more fees).

more The Contingency Fee Agreement

In a personal injury case, the attorney will most likely charge legal fees pursuant to a contingency arrangement, which means he or she will collect a percentage of the fee after the case is settled or tried to a jury (and won). So this first visit or consultation would not be charged pursuant to an hourly fee anyway, nor would the second or third or thirtieth. It’s all part of the labor involved in representing a client and earning a 33.33% or 40% contingency fee.

So when a contingency-fee attorney promises the first consultation free, recognize that it is not actually free, nor would he charge you per hour anyway. The “Free Consultation” in personal injury matters is simply a marketing tactic. I have listened to hundreds of prospective personal injury clients explain their issues to me over the years, and in those cases I do not “charge” for this first visit. Given that it is an injury case, I will charge a “contingency fee” rather than an hourly rate, so I recognize that it is all part of the work I will do on behalf of my new client. In that way, I am not providing a free consultation. If the injury case is successful, the client will get paid and I will get paid at the end of the case. If not, unfortunately, no one gets paid.

You Get What You Pay For

Here’s the thing: you don’t want a free consultation. You should recognize the value you receive and the power you have when you pay for services. It will be the best way to ensure that you receive careful, quality representation from an attentive and responsive lawyer. (And this applies to all professions: doctors, accountants, money managers, barbers, painters—everyone.)

There is much truth in the adage that you get what you pay for. When I was in my twenties, and broke, I went to a hotel ballroom that promised a trip to the Bahamas if only I would listen to a simple, four-hour presentation on time-share purchases. I went. It was horrible. Highly trained and highly caffeinated salespeople talked and talked and talked at me about purchasing a time share. I endured this torture for hours, and then received a small document explaining how I was now entitled to receive a four-day stay in the Bahamas. Reading the details, it became clear that I could only use the offer during certain very limited periods in the year, and that I couldn’t arrive (or depart) on certain days of the week. Beyond that, I wasn’t even sure the hotel they promised me had vacancies on the days of the week I was allowed to show up. It quickly became clear my free Bahamas trip was useless. I never made it to the Bahamas (at least with my free voucher). And I will never get back that afternoon listening to “Keith” tell me about the unbelievable time-share deal (available for a short time only!).

Don’t Select an Attorney Based on Website Promises

As always, the best course of action for selecting the right attorney for your case is to do your research. Look for an attorney with demonstrated knowledge in your specific case area. Take a long look at the information provided on the attorney’s website. Does the attorney have knowledge about your specific legal issue? Does the attorney provide recent, timely, up-to-date information on the legal issues you are facing? Make sure the attorney has litigation experience in the relevant area of law. Has the lawyer handled cases such as the one you have? Finally, if possible meet with the attorney you wish to hire. After doing your research, call and explain your case to the firm’s paralegal and arrange a time to meet in person with the attorney. If after the meeting you aren’t convinced that you have found the right lawyer, or the fit simply doesn’t “feel” right, go back and start the process over.

I write more about choosing the right medical device lawyer here.

I don’t drink the Kool-Aid. I distrust simple answers, group-think, zealotry. I can’t stand when people make sweeping generalizations about the absolute evil of one side and the unconditional good of the other side. I don’t usually spend much time with plaintiffs’ attorneys who think every corporate decision is an act of violence and malfeasance. I am convinced there are two sides to every story (even if, often, one side of the story is weaker).

Medical Devices and Drugs Have Saved Many Lives

So it is with my law practice. I do not believe major companies are evil, that they are out to hurt people, that all the conspiracy theories are true. I am convinced the life-cycle of a medical device or drug begins with a beautiful idea: to develop a product that will save lives, that will make people more active, that will help people and not hurt them. In fact, virtually all medical devices or drugs are first developed by one or a few smart people attempting a solution to a pressing health problem.

And these medical devices and drugs have saved lives. And as a society we have to create an environment where doctors and scientists and corporations have the freedom and the opportunity to build new medical devices and new drugs to solve vexing health problems.

more But Corporate Greed is Real, and Dangerous

But something sinister occasionally happens on the road from inspired surgeon with a new idea to the release of 100,000 medical devices into the marketplace. Greed happens. Corporations rush products onto the market without proper testing (you can read about the flawed 510k medical device approval process here). Sales departments see huge profits on the horizon if only the product can get to the market right now. Marketing departments spend massive amounts on television commercials, Internet advertising, print ads, and access to doctors. Corporate leaders occasionally ignore clinical trials which show alarming evidence of harmful side effects and instead push the product to market with the knowledge that the product may hurt innocent people.

My Fight This is what I fight against. I fight for the people injured by the negligent or intentionally harmful acts of big corporations. I hate reading yet another white paper about a product that was released to the public even though the company had compelling evidence that the product had design flaws that could injure or kill patients. I hate this. And I will keep fighting corporations who do this to people.

My Challenge

So when corporations across the board do the right thing, when they properly test their devices and drugs, when they make decisions on new products based primarily on public health and not on immediate corporate profits, then there will be no work left for me to do. I will be out of business. I can then go back to teaching or maybe start a new career renting windsurfers at the beach. It would be an easy trade-off.

When corporations consistently put public safety and the public good over naked profiteering, I will stop representing individuals injured by flawed medical devices and drugs. I will stop practicing product liability law. I truly hope they put me out of business for good.

Job Security

Sadly though, I believe I have chosen a career path with job security. Each year, products flood the market that are inadequately tested and seriously flawed, and as the months pass hundreds of people come forward with horrific stories of permanent injuries, debilitating pain, lost jobs, and diminished lives. I hate these stories. When these people are no longer unfairly injured by failed products I will gladly “find myself a rock and roll band / That needs a helping hand.” Until then, I fight.

Call me if you need to talk about a possible product liability case: (919) 830-5602.

Try to Get Through This Difficult Period Without Obtaining Loans

I know, I know, easy for me to say. And frankly you are right. No one ever wakes up and says, “today is a great day for me to enter into a ruinous loan I will never be able to pay back.” I understand that most people attempt to exhaust every other funding source before looking for third-party funding during a desperate financial period. But I am going to say it anyway: exhaust every other funding source before looking for third-party funding. Call your parents, your kids, your friends, anyone who might help you get through the difficult financial period you face when waiting for a product liability or other personal injury case to resolve.

more Can I Get a Loan or Advance Before My Injury Case is Settled?

A product liability case almost never resolves quickly. It can take years to recover money from your lawsuit, either through settlement or a jury trial. In multi-district litigation, where hundreds of similar cases are transferred to one court for (slightly) more efficient resolution, it can take several years to complete discovery, to take depositions of both sides’ experts and fact witnesses, and to argue dozens of pre-trial motions brought by both the plaintiffs and the defendants.

If you are harmed by a defective product and file a lawsuit to seek compensation for your injuries, you may wonder if there is a way to receive advance payments while the litigation moves through the court system. This is America! Of course there is a way to receive money in advance using your lawsuit as collateral. But it is rarely a good idea, and usually decimates your ultimate net recovery. In some cases, the client will actually be expected to repay more than was recovered in the settlement or in trial.

Lawsuit Loans Work Like This

There are many companies set up to offer you money related to your injury case. Essentially the company will provide money to you in exchange for repayment of that money, with substantial interest, at the conclusion of your case. The “substantial interest” is the key term. Depending on the likelihood of success in your case (the risk involved for the loan company), the interest on the advance payment can be very steep. Companies may charge 30% interest up to 100% interest, and sometimes even more.

Example:

You have artificial hip surgery in 2012 and the hip fails. In 2014 you undergo revision surgery to take out the broken parts of the artificial hip. It takes two months to rehab, and after that you are still not 100%, but slowly on the mend. You hire a lawyer and file a lawsuit, which then gets moved to the multidistrict litigation court for that hip product. And then you wait. For two years. Meanwhile you lose your job as an electrician because you cannot do the physical work you used to do because of the pain in your leg and hip and back. You quickly run out of money. You Google “lawsuit loans” and get 300,000 hits. You call a company called Kilimanjaro Litigation Funding (KLF) and tell them your story. After you give permission, KLF contacts your attorney, reviews the case file and makes a determination of the likelihood of success of the case and an assessment of the probable settlement amount.

Let’s say KLF decides you have a good chance for success and that you will likely receive $300,000.00 in settlement. KLF will then subtract attorneys’ fees from that projected amount (typically around one third), and then subtract the cost of all existing medical liens (bills you still have to repay from your revision surgeries), and finally litigation costs. KLF determines you may ultimately receive $150,000.00 after those costs are paid, so it offers you a $50,000.00 loan and requires repayment of that amount plus 35% interest.

KLF guesses right, and you receive a settlement of $300,000.00 a year later. You receive $150,000.00 after fees and costs and bills are paid. You will then repay KLF $50,000.00 for the loan plus $17,500.00 in interest (at 35%).

You end up with a check for $82,500.00. KLF made $17,500.00 profit for a one-year loan.

And this is example represents a reasonably benign result. Depending on the risk involved in the case, that interest amount from the litigation loan company may be 50%, 80%, even 120%. In some cases, the risk of losing your case is so high the funding companies will not loan you money (for example a medical device case that the defendant manufacturer is actively defending because the company has won some key court victories regarding the negligence of the product).

Let me add that these loans are not easy to obtain. Litigation loan companies scrutinize your case carefully to make a risk assessment. Many companies will not loan money to a client if the case might take more than two years to settle. Others companies run at the first sign that the case may not be successful. After all, if the lawsuit is unsuccessful, you usually do not have to repay the loan and the loan company must “eat” the loss.

My View

I am uncomfortable with these companies and these arrangements. I discourage my clients from entering into these litigation loan contracts if at all possible. However, in some narrow circumstances, it may be necessary. I counsel my clients about the risks, but I can’t stand in the way of a person making such a decision, especially in times of financial desperation. If you go this route,

1. slow down;
2. compare interest rates;
3. ask about possible hidden fees;
4. read the proposed contract carefully;
5. ask questions; and
6. get your attorney involved.

Medical Funding Is Different

In a post last year I wrote about companies who provide advance funding for your medical care. While that kind of funding is similar in form to the lawsuit loans described above, it is different in key ways. Medical funders typically finance your revision surgeries and related medical care up front, well before you file a lawsuit or even have a claim. The lawsuit loan companies described in this article provide you, the injured person, with funds to pay your rent and car payments and other expenses while your lawsuit works its way (slowly) through the court system. In both cases you are selling off a large portion of your ultimate recovery to a third-party company, but generally the money goes to address different issues in the lifecycle of a product liability lawsuit.

Postscript: I represent people injured by medical devices and drugs in the Carolinas and throughout the country. If you have specific questions, call me: (919) 830-5602.

Abraham Lincoln had this to say about frivolous lawsuits: “Never stir up litigation. A worse man can scarcely be found than one who does this.” I agree.

I agree with Lincoln that we should never “stir up” litigation, for many reasons, the main one being that “creating” litigation is simply the wrong thing to do, it is harmful to the client, and it creates ill-will and distrust in the world and within the legal profession. But I also agree with Lincoln for completely selfish reasons: it does not lead to good results and it can easily destroy a person’s law practice. Reports of the filing of frivolous lawsuits are greatly exaggerated.

Filing a lawsuit you believe to be frivolous or even weak is a terrible thing for everyone involved: the client most importantly, but also for the defendant, and for the reputation of the bar, and for the lawyer bringing the weak lawsuit.

“Ambulance Chasers”

Most of you know about the concept of frivolous lawsuits. Many corporations, defense lawyers, pro-business politicians, and critics of personal injury law refer to personal injury lawyers as “ambulance chasers.” It suggests a half-crazed army of greed-drunk lawyers who chase down any lead to find a new case; it also implies a group of attorneys who will file a lawsuit no matter how weak is the evidence.

I still recall the painful scene in The Rainmaker when Danny DeVito brazenly storms into the hospital and carefully wedges his business card through the fingers of the poor guy whose arm is in a cast and suspended in mid-air. I must say, it was a comical and hilarious scene.

The Battle for Public Opinion

Major corporations and critics of injury lawsuits have mostly won the battle for public opinion with respect to personal injury law. I have had so many unfairly injured clients call me and say, “I have never sued anyone before. I’m not that kind of person. I’m not greedy. I hate ambulance chasers . . . .” Somehow they have come to understand that anyone who sues another person or another company must be immoral, money-hungry, and flawed. It is astonishing, and it is false.

Companies Make Terrible Mistakes

People make mistakes. Good doctors occasionally have very bad days. Sometimes the doctor’s bad day leads to a severe injury for a patient. Corporations do not set out to harm customers with poorly-designed medical devices or dangerous drugs. But sometimes companies rush a product to market, a bit too eager to make billions of dollars on the latest metal-on-metal hip, or artificial knee, or transvaginal mesh, or prescription medication, and those products turn out to be unreasonably dangerous, and cause problems for hundreds or even thousands of patients. The cases that are filed because of the harm done from these flawed products are not frivolous lawsuits. And no plaintiff in these cases owes an apology to anyone for bringing these valid claims.

Frivolous Lawsuits Can Quickly Destroy a Law Practice

But here is the strongest argument against the position that frivolous lawsuits are a rampant problem in our legal system: a frivolous lawsuit can absolutely destroy an attorney’s law practice. Nothing will send a lawyer to bankruptcy faster than bringing one or more frivolous or weak lawsuits against a multi-billion dollar corporation or against a well-financed and well-defended surgeon. The lawsuits can take years to try, and can cost thousands of dollars in out-of-pocket costs alone. And when the frivolous case is finally lost the plaintiff’s firm could well be crippled or out of business altogether. Therefore, most personal injury lawyers I know are extremely cautious in filing each and every case. If the evidence does not support a winning result, the plaintiff’s lawyer should not bring the case. And almost always doesn’t.

Flawed Products Hurt People

Sadly though, companies too often market products that are inadequately tested, defectively designed, negligently manufactured, and/or flawed in some other significant way. And these products have caused horrific pain and suffering to thousands and thousands of innocent people. Some of these victims need multiple revision surgeries; others suffer heart attacks or stroke, or worse. I am very proud to represent these people.

Abraham Lincoln was exactly right: a lawyer should never “stir up litigation.” A frivolous lawsuit is a terrible thing for everyone involved. Yes, some lawyers are not competent and don’t realize certain cases are frivolous or weak; and yes, occasionally unethical lawyers will bring lawsuits they know to be frivolous, presumably in the hope of arranging a quick settlement with a company which does not want to defend itself in lengthy litigation. But the steady financial pressures on personal injury lawyers make bringing and litigating a weak case a terrible idea, and most PI lawyers run from such cases.