People often call my office with questions about product liability claims, failed medical devices, dangerous prescription drugs, lawsuits, and whether UNC can win the national championship this year. On this page I will try to answer the most frequent questions I get asked. If you don’t find your answers on this page or with my many blog-post articles, feel free to call me to discuss your specific questions in more detail (919.546.8788).
1. What is the difference between multi-district litigation and a class action lawsuit?
Multi-district litigation (MDL) is a system where a single court is designated to process and manage many similar individual cases on the path to settlement or trial. In the MDL each plaintiff has his or her own separate lawsuit. In product liability cases, often a single federal court is chosen to gather these cases and move them along efficiently. If a “global” settlement is not reached, the individual case is transferred to its home court, where the case can be tried. For more information, check out my blog post on MDLs here.
Multi-district litigation is not a class action lawsuit (although many people think it is). In a class action, one person is chosen to represent the interests of a larger group of people, all of whom have been injured in a similar way to the rest of the group. The individuals in the “class” do not bring their own lawsuit, but rather join together to challenge a defendant over similar injuries. At the end of the class action lawsuit, each individual member is granted a share of the larger global settlement or jury verdict.
Most medical device and prescription drug litigation involves multi-district litigation, not a class action, as the individual injuries are more complex and unique and not well-suited to fair resolution through a class action lawsuit.
2. If I settle my case, what costs and fees are paid out of the financial award?
This is actually a complex question, but I will give you the basics. Virtually all clients hire an attorney based on a contingency fee contract, which means if the case is successful the attorney will be paid with a percentage of the total financial award. But there are often other costs that must be paid. The expenses of litigation need to be paid at the end of the process. Litigation expenses can range from small amounts, such as costs for copies of medical records, to expensive items like paying the expert witness fees of an orthopedic surgeon. Beyond attorney’s fees and litigation costs, the client must also pay for any valid medical liens that are outstanding. Medical liens are unpaid medical bills incurred as part of your medical care relating to the failed medical device or drug. You can read more about medical liens here. You may also need to pay health insurance liens, where the private health insurer demands to be repaid from the proceeds of settlement.
In multi-district litigation, where many medical device and prescription drug cases end up, often “common benefit fees” are paid to the executive team who has a major leadership role in the MDL. These common benefit fees may be taken from the attorney’s portion of the settlement.
Don’t be discouraged: Bringing a valid product liability claim can yield a good net recovery for the injured person, even with the layers of costs that must be paid from the proceeds.
3. Is it too late to bring my product liability lawsuit?
When people ask this question, they are most likely referring to the statute of limitations. Every state has statutes which limit the amount of time a person is allowed to bring a lawsuit after an injury (including a physical injury from a medical device or drug). A statute of limitation states that you have a certain amount of time to bring a lawsuit after you are injured or after you discover the injury. In North Carolina, for example, the statute of limitation to bring a negligence claim for a harmful medical device or drug is three years. N.C. Gen. Stat. § 1-52. Read more about statutes of limitation here.
Unfortunately, in some states there are also statutes of repose. These are statutes which put an outer-limit on when a person can bring a lawsuit, even if the person is unaware he or she has been truly injured through the negligence of others. A typical statute of repose in a product liability case goes something like this: a person must bring a lawsuit within ten years after first receiving the product, even if after ten years the product has not harmed the person or the person is unaware she has been injured. For example, say a woman undergoes hip replacement surgery, and she develops toxic levels of metal (“metallosis”) eight years after the original surgery, but does not have severe side effects and does not get confirmation of the injury until a month after the ten-year anniversary. If her state has a ten-year statute of repose, she cannot bring a lawsuit against the manufacturer. Even if she first discovered the injury yesterday.
Needless to say, these statutes are more concerned with protecting businesses than protecting consumers. But if several years have passed and you have some concerns about either the statute of limitation or the statute or repose, call me (or a good attorney) as soon as possible.
4. What is a metal-on-metal artificial hip?
An artificial hip consists of four main parts: (1) a stem, (2) a head, (3) a liner, and (4) a cup (called an “acetabular cup”). The surgeon implants the stem into a hollowed out femur bone. The head is a metal ball that is fixed on the top of the stem. The femoral head forms the hip joint when it is placed inside the liner and the cup (the “acetabular shell”). In metal-on-metal artificial hips, the metal cup, the metal liner, and the metal ball grind together and often cause metals to be released into the tissue and the blood of the hip recipient, which can cause serious health problems.
5. Can UNC win the national championship in basketball this year?
Of course they can. This year and every year.