Product Stickers: The Gold Standard

It all sort of starts with “product stickers.” These are the identifying stickers that are attached to the box containing the medical device, and they can be peeled off and affixed to a nurse’s hospital note or to another page in the hospital or surgeon’s record for the implant surgery. It goes something like this: the representative for the device maker shows up with the artificial hip components (or other medical device). The surgical nurse or the surgeon will double check that the components are the precise ones needed for the surgery, scan them into the system and note them in the record. The nurse will then peel off the product stickers and attach them to the hospital record and include them with all the other pages of documents explaining details of the surgery. The image at right is an approximation of what the stickers will look like: a bar code, the name of the manufacturer, the specific product name, the Lot and Reference numbers, and other identifying information.

Hospital Records: Typed Identification of Specific Components

For some reason, not all hospitals and surgery centers keep product stickers. Some simply throw them out with the boxes. It is not a good practice, but it happens. In those cases the person responsible for identifying the components usually types in the specific lot and reference numbers and other identifying information for each device component used in the surgery.

Operative Report

In any surgery the surgeon always writes up (usually dictates) an Operative Report where he or she describes what occurred during the surgery. In this report the doctor will explain the procedure and will reference the components used and implanted. In another section of this report, titled something like “Implants,” the doctor will list the specific components, with complete names and actual sizes.

Explants: Preserving and Keeping the Actual Device Removed From Your Body

The actual gun used in an armed robbery is better evidence than a description or a photo of the gun. The same holds for a product liability case involving a failed medical device. That’s why you should do all that you can to “preserve evidence” by making sure your surgeon understands you want to preserve and maintain any components removed from your body (“explants”). I wrote extensively about preserving explants here, and I invite you to read that article, but in a nutshell you need to send a letter to your physician asking her or him to preserve all evidence, especially explanted medical devices following the surgery. With written notice in advance, the doctor and the hospital usually understand the drill and will preserve the removed components, usually by sending the explanted components to the pathology department to hold the components for the patient or the patient’s attorney.

Surgeon’s Affidavit

As you can imagine, lawyers representing companies that sell defective medical devices will use every advantage to derail your case. If defense lawyers can cast doubt on what device is in your body, then you as the injured person cannot win your case. In some instances the product stickers were not maintained with the hospital records and the explanted components were not preserved. In that case, even with the typed identification of the products (see Hospital Records, above), you may need to obtain a signed and sworn affidavit from the surgeon testifying to the exact components implanted in your body. I have used this technique in the past and it has worked well.

Get Help From a Good Product Liability Lawyer

I’ve written about this subject on this site so often I’m not even going to link you to the other articles (they are easy to find). But I will say this: you need to work with an experienced product liability lawyer on any defective medical device case, and preferably before you undergo revision surgery (for several reasons, but mainly so the attorney can communicate with the surgeon and the hospital in advance about preserving all relevant evidence).

Identifying your medical device is very important. Being legitimately injured by a defective product is not enough. You have to show what product injured you. If you can’t, you don’t even know which medical device maker to sue. Put obviously: you cannot sue DePuy Orthopaedics for a defective Smith & Nephew artificial hip. So it is vital that you identify the exact components that injured you, in as many ways as possible. Good luck.

The Bleeding Edge

is a remarkable film investigating the public health crisis caused by our current medical device industry. It examines the two main causes permitting the manufacture and sale of defective medical devices: corporate greed and inadequate FDA oversight. It is a tragic story, particularly when the film takes a close look at many of the actual victims of these harmful medical devices. It’s one thing to hear that the Essure birth control device has injured thousands of women; it’s quite another when you see a woman on screen explain how she has given up on her hope to find love because she can no longer have intercourse due to permanent internal injuries. It is deeply sad to hear these stories. And it may have you writing your member of congress. Which you should.

I urge you to check out the film. Here are a few key takeaways:

Medical Device Regulation and the FDA

The 1976 Medical Device Amendments Act (“MDA”) was a positive step forward for regulating medical devices and for protecting human health. However, over the years certain loopholes in the MDA have allowed medical device companies to run amuck. The worst of these loopholes is the 510(k) process, which I have written about extensively on this site. Under 510(k), a medical device company may avoid clinical testing and the “Pre-Market Approval” process if the company can show that the new device is “substantially equivalent” to a similar device already approved and on the market. This may sound benign–after all the products are equivalent–but it has allowed many inadequately tested and dangerous devices to hit the market. One of the best examples of this 510(k) failure is the metal-on-metal (MoM) artificial hip. Because the MoM hip was “substantially equivalent” to previous artificial hip systems, the FDA permitted several device companies to manufacture and sell MoM artificial hips. Turns out, in many cases the MoM construction allowed metals to grind and be released into the blood and tissue of patients, causing all kinds of problems, from severe leg pain to neurological symptoms. Check out this site for many articles on the MoM artificial hip.

According to The Bleeding Edge, in some cases a new medical device is approved under 510(k) because of its substantial equivalence to an existing product that has been recalled because of health concerns. The FDA has explained that, under 510(k), it does not look at the safety of the underlying medical device; rather, it simply examines whether the new product is “substantially equivalent” to the predicate product. If this sounds loony, then you are paying attention. As a former FDA commissioner noted in the documentary, “we built a system that doesn’t work.”

Dr. Stephen Tower and Metal-on-Metal Artificial Hips

If you have had a metal-on-metal artificial hip implanted, you should know the name Stephen Tower. Dr. Tower is an orthopedic surgeon who figures prominently in The Bleeding Edge. And he deserves the screen time. I first wrote about Dr. Tower in 2017 after I discovered a lecture he had given on the potential for neurological problems associated with increased cobalt levels caused by metal-on-metal artificial hips. Dr. Tower is in a unique position as a hip surgeon but also as a victim of a MoM hip replacement, the DePuy ASR MoM hip. After his hip replacement surgery, he suffered memory loss, ringing in his ears, tremors, and mood swings. He even trashed a hotel room. Dr. Tower discovered that the metal levels in his blood were causing these neurological symptoms. After revision surgery, his metal levels dropped and his symptoms disappeared.

The documentary looks at several of these harmful medical devices, from artificial hips to hernia mesh to the Essure birth control device. More importantly, it takes a long look at several of the victims of these devices. The human suffering is intense and hard to watch, but it is vitally important to see it.

What Should You Do If Facing a Medical Device Implant Surgery?

At the end of the film the producers list a few smart moves you should make if your doctor has advised you to have a medical device implanted:

1. Do your research on the device. Distrust the “newest innovation.” As Dr. Tower said, innovation is not always a good thing.
2. Get a second opinion. Trust me, this is a good idea. And you may be surprised how different is the opinion of the surgeon a mile up the street from your treating surgeon.
3. Ask your surgeon how many times he or she had done the surgery. In some surgeries, like the Smith & Nephew hip resurfacing technique, the surgeon is expected to practice the procedure hundreds of times before he or she performs the surgery on patients. Often doctors begin these procedures after just a few practice sessions. Which is scary.
4. Take a friend or family member with you to the hospital. Have them pay attention and advocate for you.
5. Find out whether your doctor was ever paid directly by a medical device company at openpaymentdata.cms.gov.

Disclaimer (However Mild)

The Bleeding Edge presents the medical device industry in a sharply critical light. The documentary “takes a position,” and the position is that for-profit corporations who develop and manufacture medical devices often push these devices into the market without adequate testing and guided too often by a profit motive. I happen to agree with this position. However, it’s no surprise that medical device companies have been pushing back on the film’s allegations. Bayer, for example, maker of Essure, “fact checks” The Bleeding Edge on its website. I encourage you to check it out it if you would like to read the company’s response to the documentary.

If you want to discuss The Bleeding Edge, or if you have a medical device that has caused you problems, give me call: (919) 830-5602.

I’ve been writing on this product liability website for three years. I have now published over 200 articles, and two ebooks, and a page with definitions, and another page providing links to other useful websites, and yet another page where I answer “frequently asked questions” about medical devices and prescription medications, and a bunch of other information. I know many of you have benefited from this information because you have called and told me you have benefited. (I really like getting these calls.) I intend to keep writing articles as often as I can while maintaining a full-time product liability practice.

But today I am excited to announce the launch of my podcast:

Failed Hips and Harmful Drugs: The Product Liability Podcast

In this podcast I will answer your product liability questions, except in a new audio format. This way you can discover a few things about medical device and drug litigation while you walk, or drive to work, or garden. The podcast will focus on the BIG QUESTIONS I often get from people calling my office. Down the road I will interview key individuals who may be able to provide deeper insight into the problems of failed medical devices and harmful prescription drugs. And I encourage you to reach out to me with pressing product liability questions. Who knows? My answers may become my next podcast episode.

To listen to the first two podcasts, simply click the link above, or click “Podcast” on the menu bar at the top of this site. I will also make these podcast episodes available on iTunes, Stitcher, Radio Public, Tunein Radio, and anywhere else I can find to post them.

As always, if you want to talk about a specific issue you may be having with a failing medical device or a problem drug, you can email me or call me at any time: 919.830.5602.

So should you hire an out of state attorney? This is a question many people must answer, including those injured by a failed medical device or a prescription drug. I have had several clients who were initially skeptical about hiring an attorney who practiced 500 or 2,000 miles away. And I get it.

For many types of cases, choosing an attorney in your hometown or in your state is best. Do you need to set up a will with powers of attorney? Ask around and call the good lawyer who lives down the street or across town. Going through a divorce? Have a traffic ticket? Did someone breach a contract? Find someone in your city who comes highly recommended.

But what about product liability? Specifically, what about medical device or prescription drug cases? You need to find the right person to represent you, even if that person practices law in another state or across the country. Let’s look at some pros and cons of hiring an out of state product liability lawyer:

CONS How Do You Know If the Lawyer is Competent?

It’s a good question. In some cases you simply can’t know, or at least you can’t know until it’s too late. Often, if you become aware of a law firm from another state, you stumbled on the firm as a result of aggressive advertising. This does not necessarily mean the firm is not competent, but marketing does not make a firm competent. Many of these firms spend thousands (even millions) on mass marketing and TV commercials and Internet advertising. This is why you found them first. Their primary focus is to “sign you up.” So tread carefully.

You Do Not Get to Meet Face-to-Face

It is usually better to sit down with your attorney. If you hire an attorney who practices 1,500 miles away, this meeting may not be possible. And even if you meet once, you will be prevented by distance from meeting face to face on a regular basis. Something has been lost in our modern age when we rely almost exclusively on our smart phones and our computers to interact. That said, we live in 2017, not 1967. This communication trend will only intensify. And as I suggest below, it may not be the obstacle it seems to be.

The Out of State Lawyer May Not Understand Your Specific State Laws

The out of state lawyer may not understand specific laws that govern cases in your state. For example, for product liability cases, many states have consumer protection statutes that may create a unique cause of action for your injury in your state. How can you be sure a lawyer across the country will know about these state consumer protection laws? The answer: you have to ask your attorney how he or she plans to handle your specific case, including all relevant state law claims.

PROS You Need a Specialist

For medical device and drug cases, you need to find someone who specializes. It could be a disaster for you to choose the kindly man who years ago set up your limited liability company to represent you in a nationwide multidistrict litigation (MDL) involving a failed medical device or drug. The likelihood is that lawyer (whose office may be around the corner from your house) has no idea how to handle a product liability case or even knows what an MDL is. Most of these local lawyers will admit they do not handle these kinds of cases and may refer you to someone else. But some may try to take it forward. And that would be a mistake. You do not want your divorce lawyer to handle your hernia mesh or Xarelto lawsuit, just like you don’t want your podiatrist to operate on your shoulder.

So it is far better to choose a lawyer from another state who has handled fifteen or fifty artificial hip cases than to go with the local person you know, even if that person is very nice and did a great job handling your last real estate closing.

Pro Hace Vice Admission and Online Legal Research

Lawyers are allowed to represent clients in other states through pro hac vice admission. Pro hac vice means “for this turn” or “for this occasion.” It allows me to represent a client in another state for a specific purpose and for a specific case if I complete all the written requirements for this limited admission. It is straightforward and simple.

Beyond that, online legal research services like Westlaw and Lexis allow lawyers to access the complete laws of any state. I can read Oregon appellate court opinions on an Oregon consumer protection statute in seconds. I have virtually the same access to Oregon’s state laws as any Oregon lawyer has (as that Oregon lawyer is most likely using online research services just like I am). In the modern age, information everywhere is at our fingertips.

Proximity is Overrated

It is comforting to imagine that the lawyer who has helped your family in legal matters over the years can also effectively represent you in your medical device case against a multinational corporation. But these cases can be complex, and they can take years to resolve; you do not want to risk your valuable case on the local lawyer who must learn the case as he goes along. Beyond that, we do live in an age with extraordinary ways to communicate: phone, fax, email, text, PDF, FedEx, Skype, Drop Box. I have had phone calls with prospective clients 2,000 miles away, and five minutes after the call ends the client sends me hundreds of pages of medical records in scanned attachments to an email. The truth is, it is easier to handle most cases electronically. In fact virtually every court in the country now has electronic case filing. I regularly file lawsuits in federal courts in California or Ohio or Texas while sitting in my office in Raleigh, North Carolina.

So What Should You Do?

It depends. You may be quite lucky and live down the street from a very good lawyer who focuses his or her law practice on medical device and drug cases. If not, you should not limit your search to your home state. Do your homework on any lawyer, whether in state or out of state. You should read online law firm reviews and online testimonials. You can even ask the prospective lawyer for references from former clients and give those people a call. If the firm has a website or a blog, review the site carefully. Get a sense if the lawyer knows the subject area. Try to discern if the firm website is geared simply to marketing and search engine optimization (SEO) or if the site provides useful information. When you get the retainer agreement from the out of state lawyer, review it carefully and ask any questions about any provision that concerns you. But do not exclude very good lawyers simply because they may not live in your state. Your best option may well be to hire an out of state attorney for your product liability case.

Here’s a scenario: you had hip replacement surgery several years ago. In 2015 the hip began to hurt and cause other problems. You had revision surgery in 2016. While at home one afternoon recovering from the revision surgery, you see seventeen commercials from personal injury law firms asking if you recently had revision surgery following the failure of the [fill in the brand name] artificial hip. If so, lawyers are standing by to assist you with your case.

(At this point, if relevant to your situation please substitute “IVC filter” or “hernia mesh” or “artificial knee” or any number of risky prescription drugs in the scenario above for “artificial hip.”)

So your next thought may be: I should represent myself. This is known as being a pro se litigant. If that is your thought, your next question should be, “what steps should I take to make sure I get a full and fair settlement for my product liability case?” It’s a great question.

The First Thing You Do

In a word: hoard. Collect, gather, organize. Seriously, it is time to start building your case file. You will need to collect everything related to your product liability failure and to your injuries. What is relevant? Well, virtually everything could be relevant to your product failure injury claim, so gather and keep track of and organize everything. When in doubt, identify it and file it away.

Some of the documentation and evidence you will need:

• Medical records. This is rather obvious, but don’t assume just because you obtained the operative notes from your surgeon in the revision surgery that you have all you need. You don’t. You will also want to gather your complete medical history from the surgeon, your primary doctor, your physical therapist, any other medical care providers, even chiropractors and pharmacists. You need to gather your complete medical file. The defense will ask for everything, because one thing they will be searching for is a defense to your claim (e.g., were you rollerblading with your grandchildren the week before your revision surgery, taking a horrific spill?)
• Journal of symptoms/pain. It may sound like overkill, but keeping detailed notes on the onset of pain, the severity of pain, the levels of pain through the day, and other information may well win your case or increase your settlement offer. For example, what if you and your husband were competitive square dancers, and traveled the United States to dance and compete? Then your artificial hip failed, you needed revision surgery, and complications from the revision surgery forced you to retire from square dancing? That scenario sets up a very plausible argument for additional compensation, and it also sets up a loss of consortium claim for your spouse, as he just lost his dance partner.
• Explanted components. I wrote about retrieving the failed medical device from your revision surgery here, so you can read about that process by clicking the link, but it is vitally important that you send a letter to your hospital administrator and to your surgeon prior to the revision surgery so all medical staff are on alert to retain and preserve the explanted components. These components will certainly be needed as evidence as your case advances. And do not let the manufacturer’s sales representative, who may be in the room during your revision surgery, take away the explanted components “for further study.”
• Medical bills. Keep every one of them. From the surgeon, the hospital, receipts from the pharmacist, everything related to your hip surgeries.
• Expense journal. Keep careful track of all expenses: out-of-pocket expenses, co-pays, costs for prescriptions, mileage to and from the university hospital in the next town.
• Tax information. Did you miss two months of work in 2016 following your revision surgery? Did your 2016 W-2 show that you made $6,000.00 less than you made in 2014 and 2015? Make copies of your tax information going back to the time of your original implant surgery, and keep copies for every year through the year of your revision to the present day.
• Health insurance information. Gather all documentation related to any payments or services provided by your health insurance company. Most likely, the health insurer will expect to be reimbursed for payments it made on your behalf relating to a failed medical device or harmful prescription drug. You will eventually have to deal with that health care lien.

Not all of this information will be useful to your case. But in the early stages, you will not know what is useful and what is not (especially if you are working without a lawyer). So if you have any doubt about “relevance,” keep the document or the receipt or the letter. And keep all of the information carefully organized. If you have a receipt, paperclip an explanation (“second prescription for Percocet following my revision surgery”).

A Word of Caution

Let me be clear: I do not recommend representing yourself in a product liability case. There are simply too many things that you can overlook or that can go wrong. The best evidence that you should not represent yourself may be this: the medical device or drug manufacturer really wants you to represent yourself. Unrepresented parties often receive much smaller settlement amounts than do injured people who are represented by competent lawyers. It’s not that product liability lawyers are smarter than other people; it’s simply that a person who does this work day-in-day-out, month-after-month, for years will be more experienced in maneuvering through the dozens of steps it takes to prepare a good product liability case for (1) the best settlement or (2) trial.

But if you take on your product liability case yourself, you should start by building your case file, one document or record at a time. Good luck.

Note: This post is not legal advice. And I don’t have TV commercials.

Let’s say you are a woman in your forties, and the mother of three children. After the birth of your third child you began to suffer from pelvic organ prolapse. This condition occurs when an organ like the bladder drops from its normal position and presses against the walls of the vagina. You go to your gynecologist, who recommends implantation of transvaginal mesh (TVM), the net-like plastic product that was marketed and sold as a solution to the problem of pelvic organ prolapse. You have the surgery. Soon you begin to suffer new and different pain and new health problems. You undergo three revision surgeries to remove all the pieces of the mesh. But after the revision surgeries you still suffer from pain and incontinence. You call an attorney, who files a lawsuit against the manufacturer of the TVM product. A few months into the litigation, your attorney explains that you now need an expert witness.

Your attorney is absolutely correct: you will need an expert witness in virtually all product liability cases. And a good one. And fast. If you do not have a qualified expert witness who can make the connection between your injuries and the failed product, then in the eyes of the court you do not have a case.

Your Most Important Witness

Expert witnesses are critical members of the team that is built to win your product liability case. In fact, other than your choice of attorney, the selection of the expert witness will be the most important decision you will make to help you win your case.

Expert witnesses are common in all kinds of litigation. In a simple car crash case, a treating doctor is almost always called to testify about the nature of the plaintiff’s injuries after the crash. In some car crash cases, a second expert witness will be called to explain why a car’s brakes failed, or why the car’s airbag did not deploy. Usually this testimony ends by showing causation, “and if the brakes did not fail, the driver would not have crashed into that oak tree and broken his arm.”

In a product liability case, the expert must be able to show causation, to make the connection between the failure of the product and the injuries the person suffered. If the injured person cannot show this causation through the testimony of a qualified expert witness, she cannot win her case. In the example at the top of this post, the expert will have to be able to testify that the new pains and the new health problems were medically caused by the failure of the mesh and the need for multiple revision surgeries.

But I’m getting ahead of myself.

more Finding a Qualified Expert Witness

Before an expert witness can testify as an expert, he or she must be qualified by the trial judge. You may have heard the name of this case before, but in most states the admissibility of expert testimony is governed by a Supreme Court case from the 1990s, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The Daubert standard requires a trial judge to scrutinize all potential expert witnesses before the expert is permitted to testify as an expert. If the expert is qualified by “knowledge, skill, experience, training, and education,” the expert will be allowed to testify if:

(1) the information provided by the expert will help the trier of fact to understand the evidence or determine a fact in issue;

(2) the testimony is based on sufficient facts or data;

(3) the testimony is the product of reliable principles and methods; and

(4) the expert has reliably applied the principles and methods to the facts of the case.

The qualification of an expert is one of the biggest battles that a plaintiff will face in litigation. The plaintiff’s lawyer will argue aggressively for the qualifications of the expert and the relevance of the expert’s testimony. The defense will argue just as aggressively that the plaintiff’s expert is unqualified, and that even if the expert is qualified, the testimony will not be helpful for the jury to understand the case. The trial judge will ultimately have to make the determination whether to permit the expert to testify. It is one of the key decisions the judge will make in a product liability case.

I can’t stress this enough: your expert witness is a vital part of your case. If the expert does not have proper education or credentials, or if the expert fails to provide convincing analysis of the connection between the failed product and the injuries, then the judge will reject the expert and the plaintiff will lose her case.

This situation happened recently in the Zimmer NexGen knee case. On the eve of the second “bellwether” trial, Judge Pallmeyer rejected the plaintiff’s expert and granted summary judgment for the defendants. Among other things, the judge concluded that plaintiff’s proposed expert has not “given the court sufficient basis to conclude that his opinion is reliable.” (Order, p. 17) After years of litigation, the plaintiff was out of court.

Your Expert Must be a Good Communicator

Choosing the right expert is very difficult. First, you must find a person with the right kind of expertise for the particular case. This expertise must be of a kind that will survive a motion to exclude the testimony by the defendants (such as a Daubert challenge). If your expert survives that scrutiny, he or she will still need to be able to communicate effectively with a jury. And those jurors will likely have almost no understanding of transvaginal mesh or pelvic organ prolapse (although they will know a lot about it by the end of the trial). Your expert must be able to communicate complicated medical or scientific terms in a simple way so that jurors will understand the concepts. This is no easy task. Your lawyer must talk to several potential experts before hiring one to testify on your behalf. My favorite experts are natural teachers. They can take very complicated subjects and explain them so that my teenage son can easily understand them. When that happens, you often win over the jury.

Experts don’t work for free. Every expert will charge the plaintiff for the time it takes to review the case file, analyze the information, write an expert report, and testify. Beyond that, the expert will have to be paid for travel expenses, hotels, and other costs. But if you find the right expert, the expense will easily pay off. Good luck.

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.

Clients occasionally ask my advice on how best to handle the new money that has come into their lives. Frankly, this is a happy conversation. But it’s also extremely important to get the answer right. The worst thing clients can do is spend down the money quickly and have nothing left a few years down the road when they still need money.

more Find Good Advisors

The first thing you should do is select a competent tax accountant to help you maneuver through the tax consequences of newly acquired settlement funds. While funds paid as damages for personal injury are not taxable, money damages for lost wages and punitive damages are taxable. You need a smart tax accountant to help you create the best plan to protect your assets. One suggestion your accountant may give you is to make sure you contribute the full amount to your employer’s 401(k) retirement plan in the years following your receipt of personal injury funds. Contributions to an IRA may also be wise. This will allow you to protect more of your income from taxation. You may also need an estate planning lawyer to assist with distributing your assets at the time of your death. You will likely need a will (or to update an existing will), and you may also need to set up a basic trust for protection of the assets for your heirs.

Plan Plan Plan

You will also need to create a financial plan. You should ask yourself all the tough questions: Can I continue working? How long will my spouse continue working? What other sources of income do I have? Other than the injuries from the failed medical device or drug, what other health issues do I have? Does my spouse have health issues? My children? (Every single health “issue” costs money.) What is the state of my health insurance? Is my house paid for? Our cars? Am I on-track to retire at a reasonable age?

Financial advisors urge their clients to create a plan, especially when a substantial amount of “sudden” money arrives. Once you create your financial plan, revisit it after one year. And then every year after that.

Make Only Required Payments at First

Do not rush out and purchase a $60,000 Mercedes. That is really the worst thing you can do. I know that’s not a sexy answer, but it’s the truth. Instead, you should make all required or overdue payments first. If you have medical bills outstanding, you need to pay them. Your attorney must assist you in getting all medical “liens” paid, but you may have other incidental medical bills to pay. If he hasn’t done it for you already, ask your lawyer to help you negotiate lower payments to satisfy existing medical bills.

Further, pay off high interest credit card or other consumer debt. Debt is awful. And high interest debt is the absolute worst. High interest consumer debt can easily deplete settlement or trial funds in a matter of a few years. If you have debt at the time of recovering money in a personal injury case, pay it off in full. You can try to negotiate with your credit card company for a payoff that is less than the full amount, but regardless you have to rid yourself of ruinous consumer debt.

Set Up an Emergency Fund

To start with, everyone should have an emergency fund (if possible). An emergency fund is a savings account set aside for emergencies like home or car repairs, or living expenses if you lose your job. You should strive to build up savings to cover necessary living expenses like your rent or mortgage, car payment, utility bills, and groceries for six months. In fact, an ideal emergency fund will cover your living expenses for a year. You should keep this money somewhere accessible like a savings account or money market account, and you should not invest the emergency funds in pork bellies or oil wells or your nephew’s dog grooming business. Once you have the fund established, leave it alone. You should work hard to ignore it. After all, it’s there for emergencies only.

Invest Wisely

If you invest your personal injury settlement funds, invest wisely. Above all, diversify. This means don’t put all your money in one investment. I would recommend paying a financial advisor (as opposed to having the advisor actively “manage” your money) to give you sensible advice on investing. A combination of mutual funds, stocks, bonds, and cash on hand is often wisest. If you have the extra money, you may consider using a small portion of your settlement funds to purchase an annuity, which is an insurance product which entitles you to annual payments at a later time, and these payments can reoccur for ten or twenty years or the rest of your life. Annuities work well only in limited situations, and they can certainly be a mistake, so be careful with this option. Annuities are useful only when made part of a larger, comprehensive investment plan.

Have a Little Fun

Again, don’t buy that Mercedes. But once you have a plan for utilizing the money in the best way and for the longest time, then try to set aside a small amount to do something fun. You have been paid because a large corporation was negligent in a way that physically hurt you or a family member. You clearly have suffered needlessly. It’s vital that you put the money to its best and most long-term use, but you also need to pump the brakes and do something that brings you joy. A vacation is a great choice, because after years of surgeries and rehabilitation and litigation, you and your spouse may simply need to sit under a palm tree and relax.

The Takeaway: A Good Problem to Have

Figuring out what to do with money you receive from a settlement or trial verdict is a good problem to have. But you should nevertheless treat it as a problem to be solved. Wasting assets like this can become an injury similar to the original injury. Don’t let this happen. Be smart and careful with settlement funds, so the money can work for you for many years.

Note: I am a product liability lawyer, not an accountant, estate planning lawyer, or financial advisor. You will need to find these professionals to sort through all the questions you will have after you receive personal injury funds.