How Many Attorneys Are Generally Involved In A Mass Tort Case?
It really depends. In the case of Transvaginal mesh, which has been consolidated in the Southern District of West Virginia, there are hundreds of plaintiffs’ firms and thousands of plaintiffs’ lawyers as well as probably hundreds of defense firms and just as many lawyers. Typically one of the first things that happens when the case is consolidated in an MDL is that there is a leadership structure appointed. Attorneys with years of experience who are knowledgeable about the product at issue will be appointed as the leadership, so that information can flow through them to the rest of the firms with cases.
You then have a local firm; if that person appointed is not from that area where the MDL is, you’ll have a local firm that serves as a liaison counsel. You’ll have different committees that are formed: a science committee and a marketing committee that forms the leadership on the plaintiffs’ side in order to advance the cases so that there are not too many cooks in the kitchen.
The same can be said for the defense side. Typically, there is a firm and a few lawyers appointed as the head of the defendants’ steering committee who handle the day-to-day and communicate with the court and provide the information to the rest of their team. There can be a handful of lawyers doing all the heavy lifting or several hundred doing all the heavy lifting and the same goes, there could be a handful in the entire MDL or there could be several hundred in the entire MDL.
Where Do Mass Tort Cases Originate From?
Typically you’re going to have firms that specialize in this type of practice that believe they have a viable drug or device or data breach case and believe that consolidation will best serve their clients and best serve the efficiency of the case.
Sometimes the defendant, the pharmaceutical company or device company, will request MDL or multidistrict litigation consolidation. That has been done quite a few times, it just happened with GSK with their drug Zofran. They were facing so many lawsuits in varying parts of the country that they asked for the cases to be consolidated in front of one court and MDL and that decision should be coming out pretty soon.
Oftentimes, the person injured, the plaintiff, does not have a choice whether or not their case is transferred to the MDL. If the MDL exists and the plaintiff’s case was in the Federal Court, it’s going to be MDL, meaning it’s going to be transferred by operation of law for pretrial and maybe even trial purposes.
What Are the Ways in Which Law Firms Can Reach Out to People with Potential Mass Tort Cases?
Even in my seven plus years of practice, the game has changed quite a bit. There is a lot of mass marketing, both through the internet and on television on both the drug manufacturer’s part for pushing a particular drug.
You might have seen a Xarelto commercial with Arnold Palmer and a race car driver and a comedian. Xarelto is a drug that right now is in the throes of an MDL in the Eastern District of Louisiana, so it has been consolidated and you might see right after that commercial, a law firm advertising, “Have you been injured by Xarelto?” You could Google Xarelto and the first probably 10 hits you’d get would be attorney advertising. Some believe that that’s maybe a little aggressive on behalf of these plaintiffs’ firms.
Others, like me, believe that it’s important to notify people that they may have recourse if they were harmed by a particular drug or device and they might not have known that if they hadn’t seen that advertisement.
As far as advertising is concerned, attorneys are not permitted to directly solicit clients but, unfortunately, we’ve seen some bad apples. In the transvaginal mesh litigation there has been some data mining and some unscrupulous call centers set up in other countries, and some women are literally being cold called or solicited through social media to see if they had a mesh implant. That’s not right, that’s not the way things should be going, and I hope that conduct is curtailed.
Do Attorneys Have Access to Databases Containing Medical Records of Potential Clients?
They are not supposed to. HIPAA protects the disclosure of our sensitive health information and that type of information should not be disclosed without an authorization. Unfortunately, there are a lot of companies out there that are buying that data and selling it.
I was just reading about a few companies, again involving transvaginal mesh, that are funding mesh explant surgeries or even buying subrogation rights from insurance companies who paid for a mesh explant surgery and then holding the debt above the clients as a litigation expense at a cash rate, rather than the rate the insurance company paid for the same service. This type of conduct is ridiculous and really makes all lawyers look bad. So some pretty bad stuff is going on out there and I hope that something can be done to make sure that that kind of conduct is curtailed.
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