The opioid epidemic in America is a national crisis. The U.S. Centers for Disease Control recently reported that more than 64,000 people died in 2016 from drug overdoses, with the great majority of those deaths caused by opioids. The numbers for 2017 only look worse.

Last month, I wrote about whether people affected by the opioid epidemic can sue the drug manufacturers and distributors, doctors, pharmacies, and other suppliers who contributed to the addiction that destroyed their lives. But what can victims recover in lawsuits involving dangerously addictive prescription drugs?

You know all too well what you have lost—your financial security, your health, or perhaps even a loved one’s life. Now, let’s review the legal terms we use to discuss these losses.

Defining Damages

Losses that a person seeks to recover in a lawsuit are known as damages. Damages are, in short, the financial reward that a successful litigant wins at the end of a case. Damages are generally divided into two broad categories: compensatory, or actual, damages and punitive damages.

Compensatory damages seek to restore what injured people or their survivors lost in terms of money. These damages are awarded to compensate someone for an injury. They are calculated by considering what a person lost because of someone else’s wrongdoing. Typical compensatory damages include lost income and medical expenses.

Not all compensatory damages are measurable, however. Economic damages—like hospital bills—have an exact, provable dollar amount. Noneconomic damages attempt to put a dollar value on pain and suffering or on the loss of a loved one’s companionship. They’re harder to measure and prove but often are worth more than economic damages.

Punitive damages, on the other hand, aren’t about paying back what a victim has lost—they’re about punishing the responsible party for doing something wrong and discouraging others from behaving in the same way. Punitive damages tend to be significantly greater than compensatory damages, but they aren’t available in every case.

As an example, remember the case against McDonald’s when a woman was scalded by excessively hot coffee? The jury in her case decided that she should receive $160,000 in compensatory damages, including her medical expenses, and another $2.7 million for punitive damages to prevent McDonald’s and others from serving dangerously hot beverages.

The McDonald’s case points out another critical reality about damages: just because a jury awards you damages doesn’t mean that the judge will (or can, in some cases) impose that full amount. The plaintiff in that case was ultimately awarded only $640,000 by the court and ended up settling for even less to avoid an appeal.

Damages in an Opioid Addiction Case

What do these definitions and terms mean for you? For an opioid addiction case, the actual damages suffered by addicts or their loved ones could include:

• lost income from missing work, losing a job, or losing the ability to work due to disability;
• medical costs, whether from a medical emergency (such as an overdose) or from long-term health problems caused by opioid abuse;
• drug treatment costs to overcome an addiction; and
• pain and suffering related to opiate addiction and the damage it does to relationships and lives.

Bear in mind that you will have to justify any damages you seek and explain how they are related to the addiction to opioids. This means both documenting any financial losses and connecting the responsible party’s actions—whether that’s the manufacturer who failed to properly warn about a drug’s addictive qualities or the doctor who prescribed you too many pills and enabled your addiction—to the damages you seek.

What Should You Do Now?

If you or a loved one has become addicted to opiates after receiving a prescription, there are a few things you should do today.

First, if you or your loved one is still actively addicted, get help. Nothing is likely to get better until the addiction is under control—and no amount of money will fix that.

Second, start to make notes about the losses you’ve suffered because of opiate addiction. Keep track of these and add to them as you think of additional types of damages or as more damages occur. It’s better to err on the side of including too much information or reaching too far than it is to leave something out and forget about it. While you’re making your list, consider what you would need to document those losses: collect paystubs, hospital bills, and treatment center receipts in one place.

Third, consider contacting a lawyer. This isn’t the type of case that people can handle on their own. Product liability and medical malpractice cases are complex and challenging, and your opponents have a host of lawyers to defend them.

In November 2013, the first Settlement was reached between the Plaintiffs’ Committee and the Defense Team for Depuy and J&J. I have written about this Settlement and its terms here. So six years after the Original Surgery, and four years after the first onset of pain, and two years after Revision Surgery, Bill finally had the opportunity to accept the settlement offer or reject the offer and pursue a jury trial on his specific case. After much deliberation, Bill rejected the settlement offer.

Three years have now passed

. Bill’s case is not on a trial calendar. In fact, as far as I am aware no case has yet been tried of any person who rejected the settlement offers. To make matters worse, this summer Judge Katz, in charge of the MDL, passed away. A new judge had to be appointed to take his place overseeing the MDL.

Bill is at his wit’s end. He told me he merely wants his day in court. He is now nine years removed from the Original Surgery, seven years removed from the onset of symptoms, five years from Revision Surgery, and over four years from filing suit. And still no trial date in sight.

Bill is not alone. Hundreds of people in the MDL rejected the settlement. And those people are waiting too.

So how long does it take to resolve your artificial hip case?

more All Civil Litigation Takes Time

I wish I had better news, but it takes a long time. Any civil litigation takes time. There are “rocket dockets” scattered across the country that work really hard to dispose of cases in a matter of months or a year, but those courts are the exception. Even a basic breach of contract action in your state’s court can take two years or longer to resolve.

A product liability case is a particularly complex type of civil litigation. It is very difficult to prove that a product was defectively designed, or that a manufacturer failed to warn patients and their doctors of the risks involved in using a product. Often competing experts will spend many hours and many dollars fighting over these technical issues. This is one reason MDL courts were formed in the first place. Multidistrict litigation sites are designated precisely to resolve of hundreds or thousands of cases more efficiently, not less efficiently.

Multidistrict Litigation Often Takes Years to Resolve

That said, there is just no other way to say it: a case that finds its way to a multidistrict litigation court will probably take several years to resolve. So settle in. The biggest reason is this: there is simply a lot to do. Both sides need to engage in general, “shared” discovery, where the plaintiffs will depose the defense experts and fact witnesses, and the defendants will depose the plaintiffs’ expert and fact witnesses. Aside from that, often hundreds of thousands of pages of medical records, expert reports, scientific studies, and business records must be reviewed and analyzed. Dozens of pretrial motions are filed, and all must be ruled on by the MDL judge. It simply takes months and years to get through this work. Meanwhile, Bill, and thousands of people just like him, wait.

The waiting game is not limited to artificial hips, but includes all kinds of medical devices and harmful drugs. The Mentor ObTape Transvaginal Mesh MDL was formed eight years ago and is still going strong in Georgia. The Depuy Pinnacle Hip MDL was formed almost six years ago, and bellwether cases have been tried this year, with no settlement agreement in place. There are multiple IVC Filter MDLs, as well as MDLs for the drugs Risperdal, and testosterone, and Xarelto, and Viagra.

Every Case a Snowflake

Still, every single case that has ever been filed in any court is unique. The facts in each case are different. The parties involved are different, and the lineup of lawyers and judges and juries are different. Occasionally a person may find her case transferred to an MDL the week before a global settlement is reached. If she accepts the terms of the settlement, she may actually resolve her case in a few months. Other individuals may not qualify for a settlement based on the timing of their Revision Surgery, and they will be forced to resolve their cases one at a time without the benefit of a settlement structure. And other people, like Bill, will choose trial, which can take more years of waiting to calendar, to try, and to overcome the inevitable appeals.

Is all this waiting and effort worth it? I would say absolutely. If you were injured by a company’s negligence, you deserve to be compensated. Even if it takes years.

Note: The narrative above does not refer to any specific person or case.

The statute of limitations can be the strongest defense a product manufacturer will bring to defend itself and avoid paying money in a product liability lawsuit. It can be deadly to your medical device or drug case. The problem is, determining the proper deadline to bring your lawsuit is rarely simple. It is critical that you find someone who can figure out when the clock started ticking on your product liability case.

Definition

Let’s start with a simple definition: a statute of limitations is a state law which limits the time period when you may bring a lawsuit for money damages for a personal injury. In each state you have a certain number of years from the injury, or the date of discovery of the injury, to file a lawsuit and recover money for your injuries.

If you miss this deadline, you lose your right to bring the lawsuit, forever. These statutes must be taken very seriously.

Rationale

The rationale makes sense: citizens and companies do not need to be vulnerable to being sued indefinitely for an act of negligence. If you were in my grocery store twelve years ago, slipped on a banana peel, broke your arm, got medical treatment, recovered, then waited over a decade and finally sued me and my grocery store for negligence, it could be a serious hardship on me and deeply unfair. I need reasonable assurance that I won’t be exposed to lawsuits forever. So states across the country have written statutes that limit the amount of time an injured person can bring a lawsuit. Essentially, state legislatures are telling injured persons: we respect your right to sue for money damages when you are the victim of some kind of negligence, but don’t sleep on your rights. If you are hurt because of someone else, get on with it and file a lawsuit. And if you wait too long, you lose your right to recover damages.

(I don’t really own a grocery store.)

Determining When Your “Lawsuit Clock” Starts Ticking moreIn some cases determining the start of the running of the statute of limitations is quite easy. For example, in a car crash case where injuries are obvious (like a broken arm), the clock starts at the time of the crash. In North Carolina, the statute of limitations in negligence actions is three years from the date of injury. If your car crash occurred on April 27, 2016, you must file a lawsuit within three years, no later than April 26, 2019. That one is easy. But as you will see below, often the determination of the “relevant period” for the statute of limitations can be difficult to sort out. And this much is clear: if there is any chance the statute of limitations has run or has passed, the defense lawyers will argue loudly that the case is void and should be dismissed.

The Discovery Rule

Many states, including North Carolina, use the Discovery Rule to start the clock running on the statute of limitations. In many injury cases, the injured person does not know she is injured. For example, a young woman may not realize for months or years that a physician negligently left a surgical needle inside her body during a surgical procedure. It may take some time for symptoms and pain to develop. The discovery rule states that the clock does not begin to run on your injury until the person’s injury becomes “apparent or ought reasonably to have become apparent” to the injured person.

The Discovery Rule is helpful to injured persons but can be difficult to sort out. As you can imagine, the date the clock starts ticking (or should have started) can be a hotly debated issue, particularly if the defense wins the debate and thus avoids liability altogether. Example: Suppose a man undergoes total hip replacement, has pain for months afterward, but the surgeon keeps telling him, “the pain is normal; it is part of the recovery process.” Then the artificial hip manufacturer sends a letter to the man informing him that his artificial hip components have been recalled. Still, his doctor keeps telling him the artificial hip is fine and that he should not consider revision surgery. When does the man’s statute of limitations begin to run? The date of the hip recall letter? Or later, when the artificial hip moves out of place and causes him to have to undergo emergency revision surgery?

The answer is unsatisfying: it is what the judge presiding over your case says it is.

The Statute of Limitations in Each State

Figuring out the proper statute of limitations period for any particular case can be complicated. What follows is a basic guideline for bringing claims for product liability causing physical injury. Still, you always need a good lawyer to review your case history then double and triple check the timelines and the statutes in your state.

In North Carolina, a medical device or drug failure is essentially a personal injury/negligence action, and the statute of limitations in those cases is three years. N.C. Gen. Stat. § 1-52.

Warning! If you are searching the Internet for the statute of limitations in product liability cases, make sure you distinguish between product liability cases causing physical injury (which in North Carolina is three years), and general product liability cases (such as when a washing machine malfunctions), which is six years.

In South Carolina, a product liability/personal injury claim must be brought within three years of the injury. South Carolina uses the discovery rule, so the injured person has three years from the date when he or she knew or should have known that injury had occurred.

In Virginia, a product liability/personal injury claim must be brought within two years of the injury or the reasonable discovery of the injury.

In Georgia, a product liability/personal injury claim must be brought within two years of the injury or the reasonable discovery of the injury.

If you have a question about the statute of limitations in your state, please give me a call and we can figure it out together: (919) 830-5602.