I get these calls fairly often. The caller will explain that her lawyer just called out of the blue with an offer to settle an artificial hip or prescription drug case. The person believes the offer is too low. Well, is it? That’s a complex question, and it may be, but there are distinct reasons why the person believes the offer is too low. Let’s take a look at what may be happening:
What We Have Here is a Failure to Communicate
Often, the problem starts with the lawyer’s failure to communicate. People will tell me that they never hear from their attorney, and then suddenly, after many months or even years have passed, the lawyer will call and quickly explain the terms of a settlement offer then hurry off the phone. This is a mistake. The lawyer should take as long as necessary to fully explain why the settlement number is what it is. In fact, it is important for the lawyer to keep the client updated on developments throughout the litigation. For example, if another plaintiff in the larger litigation loses an important bellwether case, the lawyer should call and report the loss and what it may mean for the litigation and how it might impact settlement (obviously, it’s not good for all plaintiffs if a bellwether case is lost). If the client understands generally how the multi-district litigation is progressing, the client will be more prepared when a settlement offer finally arrives.
Suffering is Very Real and Very Personal
I have represented many people who have truly suffered when a medical device like an artificial hip has failed. The suffering is real. Some people endure tremendous pain and can’t get a good night’s sleep. Others must give up tennis; some can no longer garden or walk; still others have to quit their jobs. Let’s face it: money—even a lot of money—will not compensate the person for these hardships. It is difficult to walk with pain for years, then hear that the manufacturer who sold the defective product is offering X to settle all claims the person has now and in the future. For most people, X (no matter what it is) is never enough.
Settlement Offers Always Reflect the Strength of the Plaintiff’s Case
This is an obvious point but it must be emphasized: some cases are better than others. In the metal-on-metal (MoM) artificial hip litigation (several manufacturers were involved) it became clear that it was a big mistake to rush these MoM artificial hips to the market under the 510(k) pathway (which I have written about often). It would have been much safer if the companies slowed down, performed pre-market testing and analysis of the metal hip, and then made a prudent and careful decision about whether to move forward. Several companies didn’t choose that path, many thousands of people were injured as a result, and plaintiffs won a lot of bellwether trials. Eventually, the manufacturers of these metal-on-metal hip products paid billions of dollars to settle thousands of valid claims.
By contrast, in the Xarelto litigation, plaintiffs lost six bellwether cases. This does not mean the product is safe or even non-defective, but it does mean that the plaintiffs’ litigation teams struggled to marshal the facts sufficient to convince juries of the defects and defendants’ failure to warn of the risks. (A few plaintiffs in other Xarelto trials won their cases.) These bellwether trial losses undoubtedly affected the size and scope of the larger settlement that followed.
Every Product Case is Different
The individual confined to a wheelchair has a different claim and different damages from the person who had revision surgery but is now walking and pain-free. If one person is rendered disabled at a young age, he or she should have a strong lost earnings claim. If the second individual was injured after his retirement, he would not be in position to recover lost earnings. In defective product cases, some people have extraordinary injuries and others have more modest injuries. Both cases are important, but the settlement outcomes will be different.
Above all, before you sign anything, talk to your lawyer, ask all the questions you have, read the settlement documents carefully, and make an informed decision.
Note: This article was written in general terms and does not represent any details from any current or former client or any caller to this law office.