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Why Is It Sometimes Difficult To Find A Local Attorney To Take On A Medical Products Case?

Posted Monday, November 27, 2017 by Gene Moen

With recent news stories about major products cases involving talcum powder, hip replacement, and hernia mesh among others, one would think that local lawyers would be eager to take on such cases. Unfortunately, that is often not the case. Lawsuits involving medical products or drugs are often national cases that are undertaken only by large firms that handle such cases throughout the country. We often received calls about such cases, and I try to explain to the potential client why this is the case.

Most medical products cases are very hard-fought. The outcome for the manufacturers can be measured in many millions of dollars. Each time a claimant wins a lawsuit, this increases the settlement value of the cases yet to be tried. And each time an early lawsuit results in a defense verdict, the opposite occurs. The early lawsuits filed in these cases are a thus a little like the “canary in the mine,” since what happens in those early cases can mean million-dollar swings to both plaintiffs and defendants.

The business model for firms handling these cases is very different than that of a firm representing individuals in “one on one” medical negligence cases. Any firm taking on Johnson & Johnson or Medtronics in a products case needs a large number of clients, in part to be able to pick the best cases to initially take to trial. And as the firms go forward with the cases, they also need to be able to spread the huge costs of the cases among many clients. Handling a single such case, or even several of them, is difficult if not impossible. Years ago, my firm handled a dozen Fen-Phen diet drug cases, but I knew of a New York firm that had hundreds of clients. I have heard of early claims that had a reasonable verdict range of $1-2 million, but which motivated the law firm to spend several times that amount in preparing and trying that case. The reason is noted in the second paragraph of this blog. A win or a loss means much more that the verdict in that particular case.

How the cases are handled also affects the ability of a local attorney to take on such a case. Because of the many claimants throughout the country, such cases are usually in federal court and a single judge is assigned all of the cases. This is termed “multi-district litigation.” So a judge in St. Louis, Missouri, may be assigned to handle all the lawsuits filed in federal courts throughout the county, for that particular product. The judge then has hearings at which many attorneys appear, in order to issue orders about how the litigation will be handled. I attended one such hearing in San Francisco years ago, and I think there were over fifty plaintiff’s attorneys in attendance.

Among other things, the judge has to issue orders about how discovery will be handled. Obviously, fifty or more attorneys can’t each take the deposition of key company officials. So the judge appoints a plaintiff’s committee of nationally-known attorneys on the plaintiff side, which then is charged with conducting the discovery, including depositions. The judge may also order that, if an individual attorney wants to share in the benefits of such discovery, he or she has to pay a percentage of the fee received in his or her case, to help fund the huge costs of the discovery. I know of cases where the plaintiffs’ committee had a small army of attorneys spend months going over extensive records at the defendant company’s headquarters or research facilities.

A potential claimant can find national firms handling such cases by simply doing a computer search by typing in, for example, “hip prosthesis attorney” or “hernia mesh attorney.” The result will be websites of many firms that advertise on the Internet for such cases. If you watch late-night or daytime TV, you will also see ads by national firms wanting to represent you.

Chemnick | Moen | Greenstreet
115 NE 100th St #220, Seattle, WA 98125 US
Phone: 206-443-8600
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