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. Can you be my lawyer if I live in a different state?
Yes. Of course there are rules to follow for this kind of legal representation, but it is permitted and lawful (and common) for attorneys in one state to represent clients from another state. Above all, you want to find a good attorney to handle your medical device or prescription drug case, even if that attorney is out-of-state. For more information on this topic, check out my post on the subject.
3. 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.
4. 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.
5. 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.
6. What problems are people having with metal-on-metal artificial hips?
The first warning sign would be pain or some new and unusual discomfort. I have heard people explain to me about popping sensations or odd noises emanating from the hip. Others have described heat or burning sensations in the hip, or numbness in the hip and leg area. But often people do not feel serious physical symptoms even though the hip is failing inside them. Many people discover after routine blood testing that their metal levels (cobalt and chromium) are abnormally high. Cobalt and chromium are metals which device manufacturers use to construct the metal-on-metal (MoM) artificial hips, and the high metal levels occur when tiny bits of metal grind away and release into the body’s tissue and blood. High metal levels can lead to all kinds of problems, including memory-loss, confusion, and other neurological symptoms. Once the MoM hip is removed in revision surgery, doctors often discover pseudotumors (fatty, noncancerous, but still troublesome tumors) in the hip area, fluid build-up (often black or gray and disgusting), and other unhealthy physical reactions to the metal hips.
7. Why won’t my lawyer communicate with me?
One of the biggest complaints clients have about their lawyers is that they do not communicate and update them on their cases. I get calls almost every week from people who have already signed with a lawyer but can’t get through to the lawyer and have not had a meaningful conversation since they signed the retainer agreement. Let me admit the obvious: not knowing what is going on with your case is awful. I get it. The truth is, your lawyer should call you back, and should also check in on a regular basis, even if it is an email stating: “We are still waiting for the court’s order,” or “We will file your discovery in thirty days.”
My common sense advice is this: protect yourself, but set reasonable expectations. Some lawyers truly fail to keep their clients updated and informed (and they should be fired), but sometimes competent lawyers can be in trial or arguing a complex motion and cannot immediately return a call. As the client, be patient and give your lawyer the benefit of the doubt, at least for a period of time. Your attorney could well be in the middle of a multi-week trial and simply cannot get back to you for several days. On the other hand, do not let the lawyer ignore you. If your attorney is almost never available, rarely calls you back, and takes other actions that you deeply dislike, you probably need to find another lawyer. And if you are an attorney, call your client. Keep your client updated on developments in the case, even if the report turns out to be: “nothing happened this month.” To read a bit more on this subject, check out my blog post here.
8. Can the UNC men’s basketball team win the national championship this year?
Of course they can. This year and every year.
Note: None of these answers should be considered legal advice.