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.

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 What’s the Difference?

Medical malpractice is the legal term for a doctor who has been negligent. This means that the doctor failed to perform the surgery with an expected degree of care and competence. In a phrase, the doctor simply screwed up the surgery. For a plaintiff to win a medical malpractice claim, he or she must show that the doctor failed to perform his duties with a normal “standard of care” typical of similarly situated doctors. This means that surgeons in small towns will be judged against similar doctors in similar towns, while doctors from major research hospitals in big cities will be judged against their similarly situated peers, and of course will be held to a higher standard. The bottom line is this: medical malpractice is the failure to provide competent medical care, causing the patient unexpected injury.

Please understand that medical malpractice is not limited to surgeons: hospitals, nurses, and other medical care providers can be liable for malpractice. For example, a nursing staff may fail to do the proper count of “sharps” in a surgery and leave a surgical needle inside the patient’s body. That’s a bad thing, potentially very harmful, and certainly malpractice.

Product liability is an area of tort law where a person is injured by a defective product. Virtually any kind of product can harm us: a car, a heating pad, an artificial hip. On this site I focus on two kinds of product failures: medical devices and prescription drugs, two products which can cause serious injury when they turn out to be defective.

A defective product is one that has a substantial flaw or imperfection. The defective characteristic could be a design flaw, or a manufacturing defect, or even a missing or inadequate warning (for example, “do not take this mix this medication with alcohol”). A defective product becomes a product liability case when the defect causes injury to the consumer. To use an example from this site, when a metal-on-metal (MoM) artificial hip causes metal shavings to leach into the body, and the blood metal levels become dangerously high, the product is defective and has caused injury, and the patient should have the right to bring a lawsuit against the manufacturer.

In many cases it is not always simple to sort out whether the injury was caused by the defective product or by negligent surgical technique.

And here’s another problem: in many of these cases, when the case is grinding forward, the separate defendants will point fingers at each other. The surgeon will insist he performed the surgery correctly, but that the defective product (a defect of which he was unaware) was the cause of the injury. The product manufacturer will state that the product is fine, but the surgeon was a hack and did not understand the correct implantation technique. (In fact, Smith & Nephew may be suggesting this defense in the Birmingham Hip Resurfacing (BHR) litigation, which you can read about here and here.) Still, a good lawyer can figure it out.

Can’t It Be Both?

Yes. You can certainly be the victim of a defective product and negligent medical care. But it’s often like threading a needle. To win such a case, you will need to prove that your injuries were caused by the failure of a defective product and by negligent surgical technique. So sticking with the MoM artificial hip example, let’s say you were injured following hip replacement surgery. In the months that followed your cobalt and chromium metal levels shot up, but you also developed a painful infection near the surgical site. An investigation revealed the hospital was flagged for inadequate sterilization practices, leading to an outbreak of dangerous infection. In that case, the plaintiff-patient can rightly bring claims both for the defective product and for medical malpractice.

Unfortunately, it is rarely simple to identify two separate injuries from two separately identifiable acts of negligence in a single surgery. In most cases, it is one or the other: the surgeon implanted a faulty device, or the surgeon implanted a non-defective medical device, but put it in upside down.

Either way, you need a good lawyer to help you find the answers.

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.

Occasionally I get calls from people who tell me they are unhappy with their product liability lawyer and want to fire that lawyer and hire someone else.

So should they? Let’s look at it.

Injury Litigation Can Be Highly Stressful

First, it’s important to recognize that litigation is stressful to the parties involved. Litigation involving injuries from a failed product can be very stressful. The defendants are large and well-funded corporations, and they will aggressively defend themselves against claims that their product harmed you. So you will have a fight on your hands. And fights are never fun.

Second, product liability litigation, particularly medical device and prescription drug multi-district litigation, takes a long time to resolve. You have to absorb this unfortunate reality of product liability cases. I had one case that lasted over seven years before we were able to resolve it. Although that is an extreme case, you can expect your device or drug case to take years to resolve. This slow walk to “justice” can cause a natural strain on the attorney-client relationship.

Choose the Right Lawyer the First Time Around

The attorney-client relationship begins with an often serious injury, and continues through years of contentious litigation. It can be a pressure cooker. This is why it is so vitally important to choose the right lawyer for you the first time. You should never hire a lawyer quickly or impulsively (not me, not anyone). I have written about choosing the right attorney in the past, and you can read more about that here and here, but the key thing is to slow down. Read as much as you can about the attorney and the firm you are considering. Ask questions. Do not sign with a lawyer after seeing one television commercial. Even a really good commercial.

“I Hired a Lawyer, and It’s Just Not Working”

OK, we’ve gotten this far. You hired a lawyer and you really don’t feel comfortable. Perhaps you left three voicemail messages over four months and you still haven’t received a return call. You have no idea what is going on with your case. Maybe you spoke with the lawyer for ten minutes on the day you signed the retainer agreement, and you haven’t heard from him or her since. If you feel deeply unhappy with the representation, you should first call your attorney and explain that you are dissatisfied and that you are considering hiring a new lawyer to represent you. This may motivate the lawyer and the firm to discuss all your issues in an open and honest way, and maybe you can rehabilitate the relationship and move forward. If not, read your retainer agreement carefully; this document is a contract for services between you and your lawyer, and it defines the terms of the representation and the rights of the client and the lawyer. Understand what happens in the event that you terminate the relationship. After that, send your attorney a letter stating that you want to get out of the engagement, the reasons you want to move on, then ask that the attorney release you (in writing) without any further obligations on your part. Often the lawyer will accept this no-strings-attached termination. If not, you will have to go through some negotiation to establish the terms by which you can move on. It may be that the fired attorney will expect to be paid a portion of fees in the event of a resolution of the case, but some attorneys will simply allow you to move on. You will need to work this out before you hire the new attorney.

I will say this: if you are close to settlement (especially if you have accepted terms of a settlement) it is a bad move at that point to attempt to fire your attorney. If you are truly dissatisfied, you need to make the change as early in the litigation as possible.

Final Thoughts

This subject is delicate, and I don’t want to come off as sanctimonious. Sometimes a lawyer truly does not handle a client or a case competently, and sometimes a client can expect too much from a lawyer. Do your research on the lawyer and then set reasonable expectations through the litigation. If you are a client, be patient and give your lawyer the benefit of the doubt, at least for a period of time. If some time passes after you leave a message, it could mean that the attorney is in trial (and trials can takes weeks or months). But if your attorney is almost never available, rarely calls you back, and takes other actions that you deeply dislike, you may need to make a change. You deserve to have confidence in your lawyer throughout the litigation.

And if you are an attorney, call your client. Check in periodically. Keep your client updated on developments, even if the report turns out to be: “nothing happened this month with your case.” If you do, the likelihood is that your client will never have any interest in reading this article.

Note: This post is not legal advice.

In litigation, there are several harsh and punishing deadlines. The worst one is the statute of limitations (“SOL”). The SOL is a statute in state or federal law that limits the time you are allowed to file a lawsuit. In North Carolina, for example, the SOL for bringing a personal injury claim against a person or company for negligence is three years. This means if a guy runs a red light and “T-bones” your car, causing you to break your leg, you have three years from the date of the car crash to file a lawsuit. This may seem like a reasonable amount of time; as the injured person you certainly have an obligation to pursue valid claims in a timely manner, but it can also lead to unintended and unfair results.

The SOL is just one unforgiving deadline that a person faces in the bumpy wagon ride of civil litigation. There are also discovery deadlines, deadlines to respond to motions, scheduling order deadlines, and others. One deadline may involve a settlement deadline. A settlement deadline is a date negotiated by both sides in a large-scale litigation requiring plaintiffs to take certain actions by a specific date or lose the right to participate in the settlement. In “mass tort” product liability cases, courts want to resolve hundreds or even thousands of cases as efficiently as possible. And settlement deadlines are a valuable tool in getting large numbers of plaintiffs to take quick action. Let’s look at one example:

The DePuy ASR Hip Settlement Deadlines

The parties in the DePuy ASR artificial hip litigation have negotiated three settlements so far, all with different deadlines. I wrote about those deadlines here. In a nutshell, each of the three settlements allowed plaintiffs to participate in settlement if conditions were met by a certain deadline. The most important date was the date the plaintiff had revision surgery to remove the (bad) artificial hip. In all three settlement agreements, an amount of money was offered based on the length of time the person had the hip implanted. If the plaintiff had the hip implanted for less than five years, that plaintiff was entitled to the full amount of the settlement (with some exceptions). After the five-year anniversary, the amounts paid for the injury went down. After the ten-year anniversary, the injured person was not entitled to compensation under the agreements. Why? That’s a good question. I don’t know exactly. But based on the most recent settlement, a person who had revision surgery nine years and eleven months after the original implant surgery was eligible for settlement but a person who had revision surgery thirty-five days later was not eligible. This is simply an unfair result, and it occurs any time there is some (arbitrary) settlement deadline imposed. The product-maker defendants will say: “Wait a minute. We have to draw the line somewhere, and in any case most non-defective artificial hips have a normal product life-span of around fifteen years. So we shouldn’t have to pay beyond ten years.”

I don’t accept this logic. If the product failed, there should be compensation, even if the revision surgery occurred beyond ten years.

So What if You Are Approaching the Anniversary of Your Implant Surgery?

I’ve gotten several calls from people who are nearing the ten-year anniversary from the original implant surgery. Some have pain; some have elevated cobalt and chromium metal levels; others have different symptoms. A few of them ask me: “Should I go ahead and get revision surgery to beat the settlement deadline?” It’s a good question.

My answer: get revision surgery if you need revision surgery. Medical decisions are always separate from legal considerations. Whether to get revision surgery is solely a decision to be made in careful discussion with your surgeon and your family.

That said, if you need revision or repair surgery, and if you make the decision to have revision surgery, and if you have some control over the scheduling of the surgery, and if a surgery anniversary is approaching, you may want to get revision surgery prior to the anniversary date of the original implant surgery. For example, if you had the DePuy ASR hip implanted on March 1, 2010, and you now need revision surgery, and your surgeon is available for revision surgery on February 20, 2018 and March 5, 2018, choose the earlier date. (This suggestion goes for any brand of failed artificial hip or other medical device.) If both dates work for you and your doctor, don’t potentially lose money simply by putting off the revision surgery by just a few weeks or months.

This is not legal or medical advice.

If you are injured by a defective or faulty medical device or medication, you may be able to recover damages from the responsible manufacturer. Depending on the facts of your case, these damages can compensate you for things such as medical bills, pain and suffering and lost wages. In cases where the manufacturer acted in particular nasty ways, such as burying a product study which showed an increased risk of injury, punitive damages may even be possible.

For plaintiffs who are able to obtain a damage award from the responsible medical device or pharmaceutical company, they understand they will not be able to keep every penny received. For example, some of it will go to their attorney (if they have one) and some of it may be subject to taxes. But sometimes, an unexpected “bill” comes from their health insurance company.

Why Do I Have to Pay My Health Insurance Company?

This is sometimes an unpleasant surprise, and you might be wondering if there is some sort of mistake; it usually isn’t. Even though your health insurance may have paid for much of your medical care resulting from the defective medical device or medication, you could still be on the hook for paying those bills indirectly. To effectively explain how this is so, let’s take a step back and see how insurance works.

How Insurance Works

Individuals sign up for health insurance to avoid the risk of a serious medical problem creating healthcare related financial burdens the individual can’t afford. Insurance companies agree to take on this risk so they can make a profit from it. An insurance company’s profit can be understood with the following simple mathematical equation:

Insurance premiums – covered losses = profit

The insurance companies decide how much of a profit they want, use actuaries and fancy computer programs to predict their covered losses, then set their premiums accordingly. This is an oversimplification as to how insurance companies make a profit, but it gives you a general idea.

However, insurance companies can lower the premiums, yet still maintain their profit, by reducing what they pay for covered losses. One way they do this is with subrogation.

What is Subrogation?

The term subrogation means to stand in the place of another. In the context of insurance, it usually refers to the insurance company standing in the place of the insured. When might this happen? When the insured has a legal claim against a third party, such as a medical device or pharmaceutical company.

Most insurance policies have special language that gives insurance companies this subrogation right. You may already be familiar with the concept of subrogation when dealing with your car insurance company. For instance, if you were injured in a car accident due to the fault of another and your car insurance company pays you for your covered loss, the car insurance company also has the right to go after the responsible party to recover what it paid you. Basically, subrogation gives car insurance companies the right to reimbursement.

Many health insurance policies give health insurance companies this same right. So if you get hurt, requiring the use of your health insurance benefits, your health insurance company may be able to recover from the responsible party what it paid to you. When a health insurance company exercises this right, they will place a healthcare lien on your settlement or judgment amount. It may not seem fair, but whether you know it or not, you actually agreed to this arrangement.

But I Never Agreed to Subrogation!

Actually, you probably did, but just didn’t know it. When you signed up for your health insurance and paid your premiums, you agreed to the terms of your insurance policy, which is a contract. Theoretically, you could have renegotiated a few of the terms in your insurance policy, including taking out the part that gives your health insurance company the right of subrogation.

But reality doesn’t allow for an individual consumer looking for health insurance to have this type of negotiating leverage. So if you really didn’t like the subrogation provision in your health insurance policy, your only option was to find another insurance policy that didn’t have it (which would have been unlikely).

Is There Any Good News?

The good news is that if your attorney negotiates a settlement with the medical device or pharmaceutical company, your attorney will make sure that any settlement amount will include money to pay any healthcare liens you may have. This is particularly true in multidistrict litigation (MDL) settlements. In some MDL global settlements, the wrongdoing manufacturer will agree to compensate the plaintiff for his or her injuries, and will also agree to cover the subrogation demands of the person’s health insurance coverage. This important benefit, for example, was part of the Depuy ASR Settlements.

Also, depending on which state laws apply to your health insurance policy, a health insurance company’s subrogation rights may be restricted. For example, some states have laws that limit the amount the insurance company can recover from you. This area of law is extremely complex, however, and beyond the scope of this post. But be aware that health insurance companies are powerful entities, and they work constantly to protect their rights to subrogation and ever higher profits. So at the end of the day, be prepared to pay health insurance liens from your personal injury recovery.

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.

When a device or drug maker pays money to an injured person for a defective product, several costs must be repaid from these funds. There will likely be medical liens, expenses of litigation, attorney’s fees, and health insurance liens. You can get an overview of these cost repayments in a post I wrote last year. In today’s post I want to take a closer look at health insurance liens (and the related concept of health insurance “subrogation”), mainly because health insurance companies can take a big bite out of your product liability settlement funds. Best to understand this unpleasant news upfront.

How Do Health Insurance Liens Work?

If you have health insurance, much of the cost of your medical care will be paid by your health insurance plan. Let’s say you need revision surgery to remove defective hernia mesh. The total cost of the surgery is $36,000.00, but under contracted payment rates between the hospital and your health insurance company, the cost is reduced to $24,000.00. Under your agreement with your insurance company, it pays $20,000.00 for this surgery and you pay a total of $4,000.00 in “co-pays” (that is, the amount you must pay “out of pocket” under your health insurance plan). So far so good.

A week after the surgery, while you recover from the operation (and watch afternoon commercials asking if you have been injured by defective hernia mesh), you receive a letter from your health insurance provider asking specific questions about how you were injured. The health insurance company is trying to figure out if a third-party is ultimately responsible for your injuries and thus for the costs of your revision surgery. The insurance company may want to know if you are pursuing a product liability claim against the manufacturer of the hernia mesh. It is no secret that the health insurance company is looking to be reimbursed for the payments it made for your mesh revision surgery. The moment you file a lawsuit against the product manufacturer, your health insurance company will submit a “lien” identifying its claim to some of the settlement funds. And trust me, these companies will not let this claim go lightly; they will pursue reimbursement aggressively, and you will most likely have a contractual responsibility to pay the health insurance company from your settlement funds. In fact, if possible the insurance company will expect to be repaid 100% of the costs it paid for your health care caused by the negligence of others.more

Health insurance subrogation is the closely-related concept whereby your health insurance carrier pays for your health care and then directly pursues reimbursement of those payments against the negligent third party or the third party’s insurance provider. Subrogation is the substitution of one person or entity for another with respect to an insurance claim or debt, and the entity substituted will obtain all the rights associated with the insurance claim or debt. What this means is that if your health insurance company pays money for your medical care, and it turns out your injuries were caused by a negligent third-party (such as a distracted driver or the manufacturer of hernia mesh) then the health insurance provider can step forward and demand to be repaid for the costs it incurred in your treatment. Essentially, it can pursue a lawsuit against the negligent third-party on its own, without you.

But Isn’t My Health Insurance Company Supposed to Pay for My Health Care?

In a word, yes. And these companies will pay for your health care related to injuries you sustain from a failed medical device, a problem prescription, or a car crash. At least, they will pay what they are required to pay based on the health insurance contract (and not a penny more). However, if a third party is at fault, they will want to be repaid from the third party for payments made.

This repayment can sting because it will naturally lower your overall net award from your product liability settlement. It also stings because you have paid health insurance premiums for years to provide medical care when you are injured, and the moment you receive compensation for an injury caused by someone else, your health insurance company will expect to be repaid for the medical care it paid on your behalf.

Let me put it another way, in any given year you may not receive any health care, but you paid monthly health insurance premiums every month. The insurance company does not give you that money back, and there is no mechanism for you to recover these premiums in a year when you did not need health care. What can I say? The health insurance industry has a more robust lobby in Washington D.C. than do individuals injured by defective products.

How Much Can the Health Insurance Company Take of my Product Settlement?

This can be the shocking part: in some cases the health insurance lien can be larger than the third-party is willing to pay in settlement. This means that you as the injured person may receive nothing from pursuing an injury claim against a negligent person or company. Quick example: you are hurt by the failure of a metal-on-metal artificial hip, but in the revision surgery you suffer a mild heart attack. Your health care related to your recovery from the heart attack eventually costs the health insurance company $225,000.00, but the hip manufacturer will only offer $300,000.00 to settle your case. In that situation, after other costs are paid there would be no money left over for your pain and suffering.

Some good news is that many states recognize the “Made Whole Doctrine.” This doctrine is a defense to a health insurance provider’s lien or subrogation rights. It goes like this: the insured (or injured person) must be “made whole” before an insurance company may step in and assert its rights to be repaid. But a word of caution: often the subrogation rights of insurance companies is stronger than the defense of the made whole doctrine.

If the “Made Whole Doctrine” does not protect you in your state, the other modest good news is that health insurance companies will occasionally work with a competent lawyer to lower the overall health insurance lien. For example, in the above example the health insurance company may agree to take two-thirds of the total cost for the health care “to get the deal done.” In that case, there would be money left over for you.

Finally, in many multidistrict litigation settlement agreements, the parties negotiate an arrangement for the product manufacturer to pay the health insurance liens and other liens as part of the overall settlement package. This can be one of the more attractive features of a multidistrict litigation settlement.

If you have more questions, call me: (919) 830-5602.

Note: this is not legal advice.

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.

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.

First, let me make the case for smoking:

You enjoy it. It tastes good (I guess). It makes you alert (I hear); but also, oddly, it can calm you as well (from what I’ve read). You also look cool doing it (I confess; this last part is often true). And it’s legal. But perhaps the strongest argument I hear from smokers is this: no one is going to tell me I can’t smoke. This is a free country after all.

That’s about it, really. That’s all I’ve got. And I’m not here to nag you. By all means, smoke if you must. But let me present a different perspective: setting aside the many health problems smoking causes, it can also destroy or damage your product liability or personal injury case.

Smoking Can Make Proving Causation More Difficult

In many cases, the fact that you are a smoker may make it more difficult for you to prove your case. I recently investigated a potential case against a medical professional for injury to a patient. I had a medical expert review the case and give me his opinion. He said, “it looks like it could be an injury caused by negligence, but the patient was a heavy smoker, so she likely failed to heal properly after the injury because of all the smoking.” Translation: this person may have been injured through the negligence of the medical professional, but it would be very difficult to separate the actual injury from the failure to heal, and the heavy smoking probably contributed to the client’s failure to heal. So there it was. I may be able to prove that the medical professional injured my client, but even an average defense lawyer could make the case that it was the smoking that caused much of the the pain and suffering and slow recovery after the injury.

And that’s the thing: smoking injures people. It also prevents healing. Putting all that together, smoking can make it difficult or impossible to prove injury in a product liability or personal injury case.

Even if you prove your case, and you can show injury caused by the negligence and not caused by the smoking, you can lose thousands of dollars in settlement or through a jury verdict simply by being a smoker. In many product liability master settlement agreements, the fact that you smoked can reduce your total settlement award.

The Loss of Money Is Quantifiable

By quantifiable I mean you can actually calculate (often to the penny) the money you will lose just by being a smoker. In the Depuy ASR hip settlement agreement, the Part A base award for qualifying plaintiffs was reduced by 5% if the individual used tobacco products at the time of the revision surgery. The base award in the ASR settlement scheme was $250,000.00, which means the smoker lost $12,500.00 right out of the gate, simply by being a smoker.

But that’s not all: the ASR settlement also provided an opportunity for extra payments classified as “extraordinary injury.” If the plaintiff could show some extra injury, such as a second revision surgery (“re-revision”), or a condition such as foot drop or pulmonary embolism, that person qualified for additional compensation. Nevertheless, out of the gate these amounts were reduced if the plaintiff was a smoker:

“There will be an up to 10% reduction of the QUSC’s [plaintiff’s] applicable PART B Award if the QUSC (or Product User) was a current smoker of cigarettes or other tobacco products at the time of ASR Revision Surgery or Covered Post-ASR Re-Revision Surgery as reflected in the contemporaneous medical records (with the exact percentage to be determined by the SOC).”

For example, a re-revision surgery typically qualified for $150,000.00 in extra compensation under the Part B portion of the settlement agreement. But if the injured person were a smoker, she would lose 10% of that amount, or $15,000.00. Just like that, the Depuy ASR plaintiff in this example lost $27,500.00 simply because she was a smoker, and that’s presuming she did not qualify for other compensation under the settlement, which would have resulted in further reductions of the total settlement amount.

Other settlements reached in other product liability multidistrict litigation also include reductions in pay-outs if the plaintiff smoked. The thinking in all these reductions is simple: smoking causes all kinds of health problems, so it is logical to presume that the injuries relating to the failed product or prescription drug was at least made worse by smoking. It may not seem fair; it may not even be true, but it happens often.

The Takeaway

From what I hear, it is very difficult to quit smoking. And there are many better reasons to quit smoking than to preserve or strengthen your product liability or personal injury case. I just want you to be aware that smoking can make it more difficult to prove an injury case, and it can reduce your settlement offer in cases ranging from defective artificial hips to harmful medications to medical malpractice. If you can quit now, for all kinds of great reasons, quit.

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.

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.

To paraphrase Yogi Berra, your lawsuit ain’t over till it’s over.

In a product liability case, most lawsuits end in a settlement. The plaintiff and the defendants work the case for a period of time, and eventually they sit down and hammer out a resolution to end the case. However, some product liability cases make it all the way to trial. I have written about jury verdicts in medical device and drug cases often on this site. Recently, for example, a young boy and his family won a whopping $70,000,000.00 verdict against Johnson & Johnson based on the boy’s disfigurement caused by the drug Risperdal. In that case, as in so many others, you may think that after years of litigation and after winning a complex jury trial that the plaintiff can finally leave the court system behind and get on with his life. But the case, sadly, may just be getting started. When medical device manufacturers and drug makers lose a big case with a large money award, expect them to throw the kitchen sink at you after the jury reaches its verdict. Let’s look a few things a defense team could do if it loses a big product liability case.

more Post-Trial Motions

The first thing defendants will do if they lose a trial is to file every possible post-trial motion.

• Judgment Notwithstanding the Verdict (JNOV)

This is a motion directed to the judge which asks for judgment in defendants’ favor despite the fact that the jury found in favor of the plaintiff. The argument basically goes like this: Never mind what the jury concluded. The defendants are entitled to judgment in their favor based on the applicable law. This motion first arises at the end of the plaintiff’s evidence, when the defendants ask for a judgment as a matter of law. The defendants argue, “see judge, you’ve heard all their best evidence, and given that evidence, and without putting on any defense evidence, we deserve to win this case.” If the judge denies the JMOL, defendants then put on their case. Once that is done, the jury decides who wins. If defendants lose the jury decision they can “renew” their motion for judgment as a matter of law after the verdict, which is the JNOV. Essentially, the judge at that point is not asked to tamper with the jury’s verdict, but rather to reconsider his previous decision on the original motion for judgment as a matter of law.

• Motion for New Trial

Defendants may also seek a new trial. They will argue that there were legal defects in the original trial which unfairly, even unlawfully, prejudiced the defendants and rendered the original trial void. In a recent artificial hip case in Georgia, defendants filed a motion for a new trial based on post-trial arguments that the jury verdict was inconsistent with law and flawed based on juror confusion or bias. The judge rejected that motion, but severely reduced the overall award based on a different motion, which I write about below.

• Motion to Strike Jury Awards

Motions to strike awards are pretty straightforward. The arguments go something like this: “Judge, please strike the punitive damages award because of [blank].” The “blank” could be many things: a state statute which puts a cap on punitive damages awards, or simply that the punitive damages award is unreasonably large. Unfortunately for the plaintiff, this latter reasoning prevailed in a recent Wright Conserve artificial hip case, In Re: Wright Medical Technology Inc. Conserve Hip Implant Products Liability Litigation (MDL No. 2329); Christiansen, No. 13-00297 (N.D. Ga.). In that case, the federal judge held that the evidence supported a finding that Wright Medical engaged in reprehensible conduct, which thus supported an award of punitive damages. However, he then somehow concluded that the reprehensible conduct was nevertheless well-meaning, and then randomly reduced the punitive damages award from $10,000,000.00 to $1,100,000.00, a figure he claimed was “’reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.’”

I still shake my head over this decision. It was a crippling blow to the plaintiff, stripping her of $8,900,000.00. Beware of post-trial motions to strike awards.

Appeals

This article focuses on actions the defendants will likely take if they lose a product liability case, but of course any losing party can utilize post-trial motions or appeals. For consistency I will stick with the fact pattern that the defendants have lost the product liability case.

If the post-trial motions are not successful, the defendants can appeal to the next highest appellate court. If the product liability trial was held in a state court, the losing party can appeal to that state’s court of appeals or to the state supreme court (whichever court is in position to review the case next). If the case was tried in federal district court, the defendants will appeal to the appropriate circuit court. There are thirteen circuit courts of appeal in the federal court system.

Regardless of whether the product liability case was tried in state or federal court, the defendants will bring similar appellate arguments and issues to the reviewing appellate court. Defendants will likely argue that the judge made a fatal error in permitting certain evidence, that other evidence unfairly prejudiced the defendants in the eyes of the jury, that the jury instructions were wrong, that the plaintiff did not prove actual or punitive damages, on and on and on.

If the defendants lose their appeal at the circuit court or at the highest state appellate court, the defendants have the right to ask for review by the United States Supreme Court. This will be a discretionary decision by the U.S. Supreme Court, and in most cases will be denied. The Supreme Court hears about eighty (80 ) cases per year, despite several thousand requests for cases to be heard. Unless the defendants can show some problematic issue of law that affects most of the states, or some overarching constitutional concern, the U.S. Supreme Court will not agree to hear the case. If that happens (or if the Supreme Court somehow chooses to hear the case and renders an opinion) the case is finally over. There is simply no where else to go.

But that can take years. At any time during that maddening drawn out appellate journey, the sides can come together and settle the case. It is as simple as this really:

Defendants: “You just won a $1,500,000.00 jury verdict against us. We plan to appeal. But if you will take $850,000.00, we will pay that and forfeit our right to appeal.” Plaintiff: “Will you pay $1,200,000.00 instead?” Defendants: “OK.” Case closed. (OK, it’s never that simple. But you get the idea.)

The post-trial life of a lawsuit can feel endless. It can easily take several years to work its way through all possible appellate courts. Settlements often result during this period. But if your case yields a big number at trial, expect to face post-trial motions and one or more appeals. After all, medical device and drug companies have plenty of money to pay good appellate lawyers.

I would chalk up this court decision as a victory for any injured person dealing with the C.R. Bard IVC filter. I would also chalk up the decision as yet another example of the complexities of handling statutes of limitations in defective product cases.

As always, let’s take a step back. I have written about C.R. Bard’s potentially dangerous IVC filters, which you can read about here and here. In 2015 a multidistrict litigation (MDL) site was selected for lawsuits arising from injuries relating to Bard’s G2 Series and Recovery IVC filters. The primary complaints have been that the Bard IVC filters moved out of position and/or broke apart. Lawsuits mounted, and the MDL was formed.

Lurking in virtually every personal injury case is a statute of limitations defense. I wrote about statutes of limitations here. To recap, a statute of limitations is a law which limits the time when an injured person may bring a lawsuit for money damages. You miss the deadline, you lose your right to bring a lawsuit forever.

But as I have discussed before, determining when the clock starts running on your injury case is far from easy.

Bard Lawyers Sought Rigid Framework For Statute of Limitations Analysis

In the Bard IVC filter MDL, C.R. Bard lawyers filed a motion seeking a bright-line test to identify the running of the statutes of limitation. The defense lawyers asked Judge David Campbell to adopt a strict procedure for this analysis similar to the procedure used in the Mirena IUD MDL. (Yes, there is an MDL for women injured by Mirena IUDs made by Bayer Pharmaceuticals.) The Mirena procedure was determined in the case titled Truitt v. Bayer.

more Truitt v. Bayer

In the Truitt v. Bayer case, the judge accepted the defendants’ proposal that the statute of limitations should begin to run in Mirena IUD cases based on the date the injured woman “learned that the Mirena [IUD] had perforated her uterus.” This event, according to the judge in Truitt, gave an injured woman adequate notice that she was injured and that she should begin to figure out if she had a defective product claim against the manufacturer.

The Truitt judge then set up a procedure for figuring out which plaintiffs’ cases should be dismissed based on the passing of the statute of limitations. Both defendants and plaintiffs would submit three-page letters arguing why each case should or should not be dismissed under the Truitt framework. Utilizing this procedure, thirty-one (31) cases were dismissed in the Mirena IUD MDL.

Admittedly, the Truitt decision had the advantage of simplicity. The medical records in most cases should show the date (or close to it) when an injured woman was told by her doctor that her uterus was perforated (that is, when her IUD poked a hole in her uterus). The thinking was that a woman would be told by her doctor: “Hey look. Something bad has happened. The IUD we placed inside you just punctured the wall of your uterus and we must perform surgery to remove the device.” (Or words to that effect.) The judge then also presumed that virtually every woman at that point would be savvy enough to begin an investigation into whether this punctured uterus was the result of a defective medical product.

I have no doubt the defense lawyers in the Mirena IUD cases were pleased with the Truitt decision.

There are problems with the Truitt decision. First, it presumes that a doctor clearly communicated to the patient that her uterine wall was punctured by her IUD and that she needed surgery. Second, it presumes that all women injured through the negligence of a medical device manufacturer like Bayer would know they had a claim against Bayer the moment their doctors mentioned that the IUD had punctured their uterine wall. These are big presumptions. Doctors are not always easy to understand. And it can takes months or years to figure out that you were the victim of negligence. Some people never figure it out. In my view, Truitt allowed several valid cases against Bayer to be dismissed unfairly. Sadly, I have had many calls from injured people who waited too long to call me about their (otherwise valid) case against defective product manufacturers.

Quick Example

Let’s say the defense lawyer brought a Truitt motion in a case in a state with a statute of limitations of three years. If the defense team could show (in a three-page letter) that the injured woman was told about her injury more than three years before she filed suit, the court would dismiss her lawsuit with prejudice. Even if the underlying claim was valid, and Bayer was negligent in manufacturing and selling the Mirena IUD, the injured woman would receive no compensation for her injuries.

Now Back to the Bard IVC Filter MDL

The defense lawyers in the Bard IVC filter cases wanted a Truitt type procedure for pinpointing the running of the clock on claims against Bard. Thankfully, Judge Campbell gave many solid reasons for rejecting this procedure in the Bard IVC filter MDL. The Order was entered on April 20, 2016 and is worth reading. Essentially, Judge Campbell concluded that figuring out when the clock starts to run on a defective product claim is very complex, and should not be reduced to three-page letters to the court. He then gave many examples of how a Truitt procedure could pose all kinds of problems and could yield inconsistent and unfair results.

Ultimately, Judge Campbell denied the motion and effectively rejected a Truitt analysis for considering statute of limitations defenses. This is a good thing for people injured by the Bard IVC filters. Nevertheless, the statute of limitations in each state remains a serious threat to your product liability claim. It is crucial that you find a competent attorney the moment you suspect you may be the victim of a defective product.

My firm is currently taking IVC filter cases in all states. (919) 830-5602.

Note: If you received any type of IVC filter, you should download the free app titled “IVC Filter Compendium” (http://www.ivcfilterapp.com). In this app physicians have compiled information on the different types of IVC filters, the complications that may arise, images of the different IVC filters, recommendations for removal of the filters, and other information.

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.

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.