Americans expect drug and medical device companies to adequately test for safety and effectiveness before selling their products. But this is not always the case. Some injuries caused by bad drugs and faulty medical devices are life altering and leave a patient and family buried under medical debt. In some cases, families lose loved ones because of side effects.
In spite of these safety issues, pharmaceutical and medical device companies make billions each year. In 2015, prescription drug sales reached an all-time high of $425 billion. Analysts predict it will reach $610 billion by 2020. The U.S. remains the largest market for medical devices in the world, with a market size of $148 billion, according to the U.S. Department of Commerce.
Fortunately, the law gives consumers remedies when they are injured because of a manufacturer’s negligence, and people injured by faulty drugs and devices may choose to file lawsuits for compensation.
Why File a Lawsuit
Prescription drug and medical device lawsuits involve a special area of the law known as product liability. For most people, filing a lawsuit is the only way to get compensation for injuries that cause physical, financial and emotional hardship.
Plaintiffs may claim certain injuries and damages caused by the faulty product, including:
- Ongoing medical treatment for injuries, including hospitalization costs
- Loss of companionship or consortium
- Lost wages
- Diminished quality of life
- Pain and suffering
- Losses related to the death of a loved one, including funeral expenses
While each case is unique, product liability claims all have certain claims in common. When filing a product liability lawsuit, the plaintiff must prove that the drug or device that injured them is defective. Product liability claims allege the product is defective in three ways: failure-to-warn defects, design defects and manufacturing defects.
Lawyers refer to marketing defect claims as failure-to-warn claims. Failure-to-warn claims are some of the most common types of cases. Marketing defects are flaws in the way a company markets its product, such as insufficient instructions on how to use a product, improper labeling or insufficient safety warnings.
Design defect cases refer to when the drug or device’s design may cause an injury because it is “defective and unreasonably dangerous.” For example, people injured by metal-on-metal hip implants claim the defective design caused these implants to fail early and injure people.
Manufacturing defects may be claimed when design and marketing are proper, but a mistake occurs during the manufacturing process that leads to a defect.
Filing a Lawsuit with a Lawyer
While people can try to file lawsuits on their own, it is a smart decision to hire a product liability lawyer. Cases against Big Pharma and medical device companies can be complicated and involve specific points of law. These companies have large, experienced legal teams. So injured people should also make sure they have a legal team on their side to protect them.
Product liability lawyers can help in a number of ways. They can explain legal rights and options in the event of drug or medical device recalls. They can evaluate the strength of the claim and file the lawsuit on behalf of the plaintiff. After filing a lawsuit, the lawyer can help negotiate a settlement in the case or take it to trial. Lawyers can also explain the difference between filing a lawsuit as a class action or as part of multidistrict litigation (MDL).
Steps to Filing a Lawusit
Get several case evaluations from a few lawyers.
Choose a firm or independent lawyer.
Sign a retainer agreement (contract).
Lawyer will draft a complaint in state or federal court.
What is a Class Action Lawsuit?
Most people are familiar with the term “class action lawsuit.” Many assume that all drug and device injury cases are class action lawsuits. But this is not always the case.
A class action suit is when an individual or small group of plaintiffs acts as a leader for a larger group of injured people. After filing a complaint in state or federal court, the lead plaintiffs — also called class representatives — ask the court to certify the lawsuit as a class action. The court may or may not decide to certify the case as a class action depending on the criteria.
If the parties reach a settlement in a class action, their attorneys develop a plan for notifying potential class members and settling claims. Once the court approves the settlement, lawyers notify potential class members of their opportunity to submit a claim for a percentage of the settlement if they meet eligibility requirements.
The disadvantage to a class action is that every member of the class gets the same settlement amount regardless of injuries. Individual class members don’t have control of their cases or get their own lawyers.
Drug and device lawyers do not recommend class actions because severely injured plaintiffs may not have access to larger settlements because all participants get the same award regardless of individual damages. Instead, in cases like these, lawyers file individual lawsuits that may be a part of a group of cases called a multidistrict litigation (MDL).
Examples of Class Actions Include:
- In Re: Exxon Valdez Oil Spill Litigation
- In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico
- In Re: Tobacco Cases (for concealing the dangers of smoking)
- In Re: Pacific Gas & Electric Company (featured in the movie Erin Brockovich)
- Countrywide Financial securities fraud
- Enron collapse
Multidistrict Litigation (MDL)
When dangerous drug and medical devices harm large numbers of people, personal injury claims can clog court dockets across the nation. In order to increase efficiency by allowing a single judge to oversee similar cases, a panel can consolidate the cases in a process called multidistrict litigation (MDL).
MDL is not the same as class action, although an MDL can lead to a class-action lawsuit.
A class action is a single lawsuit with several similar claimants. MDL cases remain separate lawsuits. The court does not consolidate MDL cases for a common outcome in the same way that class-action members share in the same settlement or verdict.
The Judicial Panel on Multidistrict Litigation decides when to transfer cases to an MDL. It usually occurs when there are large numbers of cases against common defendants and the courts expect more plaintiffs to file lawsuits. At the state level, a similar body or a state Supreme Court can decide to consolidate similar cases.
A single judge oversees and administers cases in an MDL. This usually involves grouping cases with common factual or legal issues together for discovery, pre-trial hearings, trial scheduling and settlement conferences. This allows the court to address common issues that affect many cases at once.
Companies may choose to settle multiple MDL cases based on early trial results. Each plaintiff can choose to participate in the settlement or not. Plaintiffs who suffer more serious injuries — such as those that require surgery or extensive future medical treatment — may be eligible for more compensation than those with minor injuries.
Examples of MDLs include:
- Transvaginal mesh (Various MDLs by manufacturer)
- Atrium Hernia Mesh (MDL No. 2753)
- Xarelto (MDL No. 2592)
- IVC Filters (MDL No. 2641)
- Stryker Rejuvenate and ABG II hips (MDL No. 2441)
- Invokana (MDL No. 2750)
- Actos (MDL. No. 2299)
How Much Does a Lawyer Cost?
In drug and device injury litigation, there is typically no fee for a consultation. In addition, these cases are also usually taken on a contingency fee agreement. This means the lawyers will not charge a client any upfront fees. The lawyer only gets paid if they obtain a settlement or jury verdict.
After filing a lawsuit, the fee is usually 40 percent of the settlement plus costs. This information should be on the contract (retainer) you sign with the law firm. If it is not, make sure to ask the lawyer for his or her detailed fees before signing a contract.
Tips for Finding the Right Lawyer
The internet is a good place to start the lawyer search. There are a few things to consider when looking for a lawyer. Remember that a high fee does not guarantee a better lawyer, but a relatively low fee could be a red flag.
When it comes to litigating drug and device cases, an attorney who has experience dealing with Big Pharma and device companies is a good choice. While having a local attorney can be good, keep in mind that there are national firms that take cases from all over the country, and they may have more experience.
Choosing a lawyer is an important step in moving forward with the lawsuit. Before making a final choice and signing a contract — called a retainer agreement — interview the lawyer.