How Soon After A Settlement Do Clients Get Financially Compensated?
There are many requirements that must be met when a group settlement agreement is reached, most of them having to do with governmental lien or subrogation interests like Medicare, Medicaid, Humana, their subparts, and all of them require a great deal of time to resolve before the plaintiff is compensated.
If the plaintiff’s medical treatment associated with the injuries they are claiming from the drug or device was paid for by someone else, particularly a state or federal entity, then that money needs to be paid back to the taxpayers. That process can take a tremendous amount of time. Bankruptcy can slow things down, too. If the client has filed bankruptcy during the pendency of the case, the bankruptcy trustee might assert that the asset, the claim, is really an asset of the bankruptcy estate that must be administered like any other asset of the estate.
There are a number of different things that have to be done before the money changes hands and typically, it’s held in a third party trust account, not even the firm’s trust account, until the requirements are met. I have seen anywhere from 100 days to a year for that process to take shape, or longer. Patience and cooperation on the part of the client or plaintiff is very important.
Will the Amount of Compensation in a Mass Tort be Modified According to the Number of Plaintiffs?
This is an interesting part that a lot of people don’t know or don’t understand and that’s sometimes hard to explain. I’m not saying this is the rule, but I would say more often than not the claims will be negotiated on an aggregate, rather than individual, basis. In other words, they are not going to look at every individual plaintiff and at every individual plaintiff’s particular set of circumstances but instead, they are going to agree on settlement criteria representative of the group.
Medical experts will examine each and every plaintiff’s medical records to determine if they meet that criteria and if so, in what way. Usually that is translated into a point system where every point has value and then it becomes a matter of plugging in the numbers based on the medical data, and getting the amount of points and then valuing that claim based on those points.
There is Takeda Pharmaceuticals, a Japanese company that makes the diabetes drug Actos, who six months ago announced almost a $3 billion settlement deal with everyone who has taken Actos and then, as a result, suffered bladder cancer.
Takeda’s lawyers set up a complex matrix where there are considerations for age, the amount of Actos ingested, the dates of ingestion, the date of diagnosis of bladder cancer, the type of bladder cancer, the medical care and treatment related to the bladder cancer, did they have a bladder tumor removed, were they on chemo, whether it came back, and so on.
They also look at confounding factors like whether cancer was in your family, if you’re a smoker, heavy smoker, light smoker, when did you quit, how many packs per day, were you exposed to any environmental contaminants, diesel fuel, anything that would make you more likely to be at risk. Obviously the confounding factors will end up deducting points, and thus result in a lesser award.
If you’re over 70, you might have points deducted, whereas a 35-year old healthy person who just happened to be diabetic and took Actos got bladder cancer, well, they are going to have to deal with that for a long time and deal with probably more treatment for the rest of their life, so it’s a case by case analysis and it’s a good system. I truly do believe in how these cases are resolved because they compensate people based on the level that would likely occur at trial based on the factors that would be presented to a jury. Sometimes someone has a unique set of circumstances that the matrix does not account for and that would potentially make their claim more valuable at trial. However, overall, the system works in that it provides compensation for a large number of people efficiently and, for the most part, justly. Not to sound too corny, but that’s all we as plaintiff’s lawyers want to do: make sure that those injured by the wrongdoing of another, particularly large corporations with endless resources, are afforded a level playing field and have access to our justice system, regardless of their financial means or socioeconomic status.
How Expensive is it to Become a Part of a Mass Tort Claim?
From the plaintiff’s perspective, if you’re on a contingency fee contract with your attorney, which that’s typically the case, the plaintiff will not owe the attorney anything until compensation is realized. So really our interests are aligned in that if we don’t believe in the case, we’re certainly not going to go spend a ton of money pursuing the case. That’s just a bad business venture. This is why I’ve never understood the “frivolous” lawsuit argument from big business – you’d think they would understand that we, as lawyers, don’t want to file a claim that is destined to lose, and lose the time and expense we put into the case in the process.
Of course, things can go wrong. For example, the case of generic drugs, several years ago there was a big Supreme Court ruling that basically said the manufacturers of any generic medications can’t be sued, they are immune from a lawsuit, because their products and product labeling must be the same as the brand name, and there’s nothing generic manufacturers can do to change that, so they can’t be held liability for a bad drug or insufficient warnings. While I disagree with the ruling, and hope the FDA gets involved there because the patient truly can’t do anything about whether they are prescribed a generic or brand, the point is that many lawyers with these cases lost the cases and all the time and effort pursuing them in one fell swoop. The ultimate tragedy, of course, is that those injured by a generic drug, at this point, have very little recourse.
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