What is the mass tort system? If you are not a lawyer, you may be asking this question. Look at this way. If you suffer an Alabama car accident injury, you may have a claim against the negligent driver. If you suffer an Alabama workplace injury, you may have a claim against your employer for workers’ compensation benefits. You file your individual claim against a specific defendant in Alabama and the court decides the issues. If you suffer an injury from a bad drug or defective medical device, the concept is similar but on a different scale. You make an individual claim against the company which made the defective product. It’s you versus the drug company. We have filed many of these defective drug and device cases in Federal Court.
The difference is the number of other claims. With a bad drug or defective medical device, hundreds or thousands of people across the United States may have suffered a personal injury. Your injuries and damages are unique. No two people suffer exactly the same. But, all the cases do have a lot of similar issues related to the product. The idea is that it is more efficient for a single judge to handle pre-trial issues where all the injured parties are trying to learn this information. So, Federal Courts will assign a single judge to oversee pre-trial motions and discovery. After the claims are fully investigated and prepared, they are sent back to the local judge for your individual trial. You end where you started — You versus the drug company.
The mass tort system is a good concept and serves a valuable purpose. Yet, over time it’s been warped. Reform is needed to protect individuals with cases.
You can read the article about problems in the mass tort system HERE. The lawyer who wrote the article represented a number of women injured by transvaginal mesh products. My firm also represented a number of Alabama women injured by these products. I experienced many of the same issues he discussed. What are the areas of concern he mentions? Here are a few:
- Mass advertising firms signing up a huge volume of clients.
- Mass advertising firms pressuring clients to settle.
- Oversize common benefit fees.
Where are the problems? The first problem lies with firms trying to sign a huge volume of claims nationwide. The second problem lies with huge common benefit fees which take money from injured clients.
We’ve all seen these advertising firms on television. With car wrecks, the lawyer smiles and promises easy results. He wants you to call! He promises quick and easy money! Behind the scenes, those car wreck firms are running settlement mills. Injured clients pay the price in lower settlements that don’t fully compensate them for serious injuries.
With nationwide mass tort advertising firms, the concept is similar but the scale is larger. These firms run commercials across the United States. The ads are unclear about the firm’s location. They sign cases nationwide despite little or no knowledge or ability to operate within the state where the person was hurt. Their plan is based on signing clients for a big global settlement. The advertising firm makes a lot of money but its clients receive very little for their injuries in many cases. Individual clients are treated like a number rather than a unique person.
In recent years, the advertising settlement mills have moved much of their marketing budgets into online advertisements. Like their television ads, the web advertisements promise results in car wreck cases or incite fears in drug cases. On a weekly basis, I hear from people duped by these advertising firms into giving them their cases. We’ve all seen the ads filling our Facebook or other social media feeds.
With mass tort medical device and drug cases, the article’s author proposed two ideas for reform. They are:
- Remand Cases More Quickly To Their Original Courts
- Reform Common Benefit Fees
These are good ideas. Let’s look first at speeding-up the remand process. Remember, when you file a drug or device claim, you typically file it in a local Federal Court. Then, it is transferred (just for pre-trial purposes) to another Federal Judge who could be located anywhere in the United States. In the transvaginal mesh (TVM) cases I mentioned earlier, that Federal Judge is located in West Virginia. With the volume of TVM cases, pre-trial discovery lasted several years. We had a lengthy wait to get the cases scheduled for trial here in Alabama. If that process could be sped-up, then my Alabama injured clients could get a resolution of their case much faster!
Next, let’s consider common benefit fees. When all the cases across the United States are centralized before one judge for pre-trial discovery, that judge will appoint a small number of plaintiff lawyers to coordinate the work and speak in court for all plaintiffs. That’s necessary. Imagine the chaos and disorder if you had hundreds of different lawyers all appearing and arguing before the court! After appointing the few lawyers to speak for the group, the judge will order that they receive a small percentage of each settlement. In theory, that’s ok. In practice, these fees can be too large. And, some plaintiff lawyers will add the common benefit fee to their contingency fee, taking a huge chunk of the injured person’s money. I do NOT believe that is fair to the injured client. This problem could easily be solved by court action.
Now that I’ve discussed two areas where courts and lawyers could improve the process, what advice do I have for injured people? If you are hurt and seeking a personal injury lawyer in a defective drug or device case, here are four things to consider:
- Avoid volume-based advertising firms
- Hire a lawyer with trial experience in your state but avoid lawyers just signing cases to refer them
- Read the attorney contract closely
- Seek regular updates from your attorney
Too many advertising firms sign a huge number of clients but never take the time to provide personal service. These advertising firms often make you sign a contract that prevents you from firing them without a huge cost. In reality, these firms often have no ability or desire to prepare your case for trial. You get treated like a number. And, your low settlement is the result. You can do better. Research your options. Find a lawyer that works for you. Find a lawyer with experience in your local Federal Courts. Find a lawyer with experience in your local medical community. The difference can be huge.
From its office in Huntsville, the Blackwell Law Firm helps people across Alabama with serious personal injury and wrongful death claims. We are happy to answer your legal questions. All consultations are free and confidential.