The following are some FAQs and their answers for those who are looking to learn more about their options when it comes to filing a personal injury lawsuit.
What are my legal options if I have a complaint regarding drugs or medical devices?
Cases involving drugs and medical devices are often grouped together when the number of people injured is significant. This can be done in several ways. Many people have heard the terms “class action” and “mass tort” but there is a great deal of confusion in the general public regarding these two actions and many people incorrectly use the terms interchangeably. While they share some characteristics, they are actually very different.
A class action is a single lawsuit that combines the claims of many similarly situated individuals. It is brought by one party on behalf of all others who have been similarly injured. A court must certify the “class” or group of claimants. Once the case has been certified, everyone is bound by the determination unless they “opt out.” When a class action is settled, each member makes a claim and receives compensation based upon the severity of their injury. There have been a number of highly publicized class action suits, often involving toxic exposures. There has also been criticism of the process as some class actions have resulted in huge payouts to attorneys yet very little compensation to the injured people.
What is a mass tort?
Mass torts involve large numbers of claims that are associated with a single product. Mass tort actions are different from class actions in that in a mass tort action each plaintiff has an individual claim resulting from distinct damages. Each plaintiff receives his or her own separate trial if the mass tort action has not been settled. In a class action, the many plaintiffs typically are not considered individually and there is only one trial. You will also hear mass torts referred to as MDLs. This stands for Multi District Litigation which means that it is litigation involving cases from many districts throughout the nation consolidated into one action under one judge.
Why do I want to file in an MDL/mass tort action as opposed to individually?
It is very expensive and time consuming to establish liability against a pharmaceutical or medical device company. It is quite frankly a David and Goliath type of situation. Pharmaceutical companies have hundreds of attorneys and unlimited funds to fight claims against them. Without a system whereby claimants and their attorneys can join forces, most claims would be crushed. In a mass tort suit, however, hundreds of attorneys around the country work together to represent their clients who have been injured by a drug or medical device. Working together allows all injured parties to have a fighting chance. It also significantly decreases the costs of your claim. The costs of investigation, expert witnesses, etc., are shared by hundreds of claimants instead of being borne by just one injured person.
Once a Mass Tort Action or MDL has been established we are often able to file directly in the court where it is pending. Even though we are not licensed in those states, since we are licensed in Arizona Federal District Court, we are qualified to file directly. In other cases, direct filing may not be allowed so we file in Arizona District Court and then your case is transferred into the MDL by the Judicial Panel on Multidistrict Litigation. In all cases where a specific drug or device has been certified for MDL treatment, such transfer is mandatory.
Can I file in state court?
You can, however, it is not likely your case will remain there. There are very few pharmaceutical or medical device manufacturers who have their principal place of business in Arizona. When the plaintiff and defendant(s) in a case reside or are citizens of different states, the defendant(s) has the right to have the action removed to federal court. When an MDL is involved defendants almost universally petition to have the case removed from the state court to the federal court. Once the action is received by the federal court, it is automatically transferred to the MDL.
How are mass torts resolved?
Mass torts may be resolved through an organized settlement or each case may be tried separately. Most do get resolved through settlement, but if that does not happen, each case is remanded or sent back to the federal court for trial in the state where the plaintiff resides. If your case does get sent back for trial, you still have the benefit of all the discovery and preparatory work that was done in the mass tort action or MDL.
Mass tort settlements vary, but oftentimes a settlement magistrate will be appointed to help the parties work out a system for resolving all claims in an organized and efficient manner. Unlike class actions, in a mass tort action, each person has his or her own unique claim. In an effort to efficiently resolve so many claims often a settlement protocol is often developed where injuries are categorized into several groups. There may be individuals who were catastrophically injured or died as a result of the drug or medical device. Likewise there may be individuals who cannot document an actual injury but suffered anxiety and stress as a result of being exposed to the product, and of course, several categories between the two extremes. For each category, there is a range of values; it is our job as your attorney to argue for the highest value category and the highest value within that category.
What is a bellwether trial?
The term bellwether refers to the sheep at the head of a herd who wears the bell. In the context of a mass tort, it is the case or cases that are tried first and whose outcomes shape or determine the settlement value of the other cases. The plaintiff’s attorneys want the very strongest of the cases to be the bellwether cases so that the verdicts are very high. The defense attorneys, of course, want the opposite. If your case is not filed, it will not be considered in determining bellwether trials. If you have a good claim but there are issues, we may advise that your case not be filed unless required due to time limitations. If your case is selected as a bellwether, you actually have to give a deposition, respond to significant discovery, have your doctors deposed and attend a trial that may last several weeks and will likely not be in the state in which you live. You also have to endure the defense attorneys making every effort to make you look bad to keep the value of your claim down.
How long will it be until I can expect my case to go to trial?
As a claimant, it is very unlikely that your case will go to trial. There are sometimes hundreds or thousands of claims filed across the country and generally very few go to trial. The bellwether cases are important because they give both the plaintiffs and the drug company an idea of what the outcome of all the cases would be. If the plaintiffs win, it makes it more likely that the drug company will want to settle the cases rather than keep going to trial.
While mass torts make it possible for many people to be compensated when injured by a large company, one of the downsides is that they often take a long time to resolve – in some cases, many years. If at any point you have questions or concerns, feel free to contact us at 622-3344.