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Much of this blog is dedicated to giving you news on significant court cases that take place throughout the country. These cases are not your typical Judge Judy, small claims type deals; they are pretty important. Typically, big personal injury cases usually manifest themselves in class actions, Multidistrict Litigation, and/or mass torts. Although these types of litigation have a lot in common, they are truly nuanced, meaning it takes an experienced attorney to fully comprehend how they work. But of course, it helps to have a basic understanding in the first place. Here is a little bit about how a mass tort works.

Mass Torts – The Basics

You cannot go around defining “mass tort” without defining”tort.” The law school definition of a tort is a “civil wrong,” committed by one person against another that results in injury. The most common tort that we as personal injury attorneys deal with is negligence; however torts also include assault, battery, intentional infliction of emotional distress, trespass, and many more. In most tort cases there is one plaintiff suing one defendant. For example, in a trespass case, the property owner would be suing the trespasser. The same is true of car accident cases where you have the injured victim suing the negligent driver. Of course, the insurance company is usually brought in as a defendant too.lawsuit3

Mass torts happen when there are multiple plaintiffs who sustained an injury from the single tort of one of more defendants. Common mass tort claims involve lawsuits against manufacturers of consumer products or pharmaceuticals. In these scenarios, one product or one drug can harm multiple people. Mass torts allow these victims to consolidate their cases for efficiency and consistency.

A group of plaintiffs cannot just come together and form a mass tort on their own however, they have to ask permission from a court. The court considers the number of plaintiffs, the geographical location of the plaintiffs, the similarities of their injuries, and how closely associated the individual claims actually are. If a court believes that these factors (among others) are satisfied, then it will go ahead order a mass tort action and publish notice of the action so other interested parties can join.

A mass tort is advantageous for both plaintiffs and defendants. Discovery, investigation, and general pretrial preparation is transferable between the plaintiffs so it cuts down on the efforts that have to be expended by both sides. Plus, this gives plaintiff’s attorneys a better opportunity to share common information that will help maximize the values of individual cases. It is not like these types of claims are easy to bring though, so an experienced and competent personal injury attorney is required to ensure that a claim is adequately pursued.

What About a Class Action?

People often assume that a “class action” encompasses every instance where plaintiffs join together to take on a common defendant. While class actions and mass torts are certainly similar, mass torts are more individualized than class actions. In a class action, all of the various plaintiffs join together for one claim against the defendant. A class action is one lawsuit with a lot of people listed on the left side of the “v.” When a class action goes to trial or settles, there is a single trial/judgment or settlement for each of the plaintiffs. Mass torts only consolidate proceedings for activities that take place prior to the trial. That means the plaintiffs that join together in a mass tort still retain the ability to have their own trial and individualized judgment or settlement.

  • The “other” class action: an MDL

I used a hypothetical to help explain the difference between the two in a blog about the Xarelto mass tort, and I think it really helps illustrate exactly what a mass tort is relative to a class action:

A good way to tell these two apart is to think about this situation: your 20 year-old son, your 80 year-old aunt, and your 2 year-old nephew each purchase a bottle of soda. Let’s say the soda is tainted and causes each of you to contract pneumonia (all the more reason to drink water). Pneumonia is going to effect each family member differently, so each should be entitled to a recovery against the soda company that aligns with the severity of their injury. That’s where a mass tort comes in. On the other hand, lets say each family member bought a soda, and a year later the company was found to be guilty of price-fixing, meaning each of your family members paid $1 more than they should have for the soda. Each of their injuries is the same here ($1 loss), so a class action is the way to go.

Here are some examples of mass torts that I have covered in previous posts:

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Once a jury hands down their verdict, the case is over, right? Sometimes, but not always. At the close of trial, both sides generally have the ability to appeal certain issues or things that may not have gone their way. Most important to remember here though: parties can only appeal legal issues, not factual ones. So an appeal should not be thought of as another opportunity to try a case. Instead, appeals are there to correct mistakes or misapplications of law. Should they court of appealsdetermine that a new trial is warranted, appeals courts have the ability to order one. But they are strictly there to determine legal issues, not factual ones.

Framework For Appeals

Every state is different, meaning every court system is different. Since this blog covers issues pertaining to the national personal injury community, I will use the federal appeals process to lay out how things work. Granted, the federal appeals courts share some similarities with many states (especially Maryland), so this should give you an idea of how things work from state to state.

The federal court system is three-tiered. There are the trial courts, which are referred to as Federal District Courts. There are the intermediate appeals courts, which are called Federal Circuit Courts. And the “court of last resort” in the federal system is the Supreme Court of The United States (SCOTUS). The state of Maryland has a similar system with trial courts, an intermediate appeals court, and a state court of last resort.

When a case goes to trial and a litigant wishes to appeal a legal issue, they generally have one “appeal of right.” In other words, they have one appeal that must be given to them under the Constitution’s guarantee of due process and access to the courts. In the federal system this appeal of right occurs at the Circuit Court level. At the conclusion of a case, a litigant can file a “Notice of Appeal” with the trial court, which lets them know that they will be appealing the decision. The trial court will then alert the Circuit Court that an appeal is on the way and generally forward the recorded record of the trial to that court. At this point, the parties will be able to submit briefs to the court explaining the legal issue in the case and asking them to rule one way or the other. Parties are also given the opportunity to give oral argument. This is neither testimony nor evidence. Oral argument is a speech of sorts that gives advocates the opportunity to argue points of law to the court. These are generally pretty intimidating given the fact that judges can interrupt attorneys at any point to ask them questions.

Intermediate appeals courts generally have several judges who sit on panels of three. These panels of three hear cases and make decisions via majority vote. By having a court sit in panels, they can hear more cases and be more efficient than if each judge heard every single case. After they render a decision, either of the parties can ask the court of last resort to hear their case. As I said before, a party only has one appeal of right, meaning the next highest court has discretion as to whether they want to hear a case.

Reaching the Highest Court

High courts require parties interested in appealing a case to submit a “petition for certiorari.” This document explains the legal significance of an issue. Each side has the ability to persuade the judges to take (or not to take) the case. The biggest consideration for higher courts, however, is public policy. They are not necessarily interested in the individual interests of the parties in a given case. They are more focused on the general issues of law that will have applicability beyond a single case. As a result, the highest courts typically take a very small percentage of cases. For example, the Supreme Court received around 7,600 petitions for certiorari in 2012, and they heard 66 of those cases. That is an acceptance percentage of less than 1%. In state court, you generally have better luck, but the odds are still low. For example, the court of last resort in Maryland grants around 15-20% of petitions for certiorari.

One of the reasons that courts of last resort hear so few cases is down to the fact that every judge on the court takes part in making a decision. Each judge reads the parties’ briefs and listens to oral argument, so it would be incredibly inefficient for every judge to hear so many cases. Speaking of decisions, courts of last resort can either affirm the decision of the lower court or overrule it. Regardless of what they choose to do, they will submit a written opinion that lays out the law and why they ruled in a particular way. It is important to note that even if a party who loses at trial wins on appeal, the case is far from over. Appeals courts cannot try cases, meaning they make their legal ruling and direct the lower court on how to proceed at a new trial.

The appeals process is long. It usually takes a few years from when the original trial ends to the end of an appeal. Appeals are also very expensive. Partaking in an appeal requires you to produce a written transcript of all trial proceedings. Depending on how long the original trial was, these can cost thousands of dollars. So it is important to remember that the appeals process is a long and expensive one that deals with legal issues, not factual ones. However, it ensures that there is (some) uniformity among the various courts and that judge-made law is as consistent as it can reasonably be within a jurisdiction.

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Wrongful death? Survival action? What’s the difference?

Whether it stems from medical malpractice or an auto accident, negligence can unfortunately result in death. In most personal injury lawsuits, the plaintiff filing the lawsuit is the one that suffered some sort of physical injury. They are suing because they desire compensation for the injuries that they sustained and the costs associated with those injuries.

When the plaintiff dies, although they have sustained harm from another’s negligence, they are obviously not around to sue that party. A wrongful death claim allows those who were affected by that person’s death to sue the person responsible. However, there are two separate types of claims involving deaths:

Wrongful Death Claim

The first of those claims is your garden variety wrongful death claim. In this type of claim, those closest to the deceased are suing for the loss of his or her presence. In order to bring a wrongful death claim, you have to be a “party in interest.” Each state has a statutory scheme that lays out exactly who a “party in interest’ is. Typically, they include the immediate family members of the victim. For example, Maryland has a two-tiered system for figuring out who is entitled to bring a wrongful death action: primary and secondary beneficiaries. Primary beneficiaries are parents, children, and spouses of the deceased person. While secondary beneficiaries are those who are related by blood or marriage should no primary beneficiaries exist. Of course, secondary beneficiaries have to be dependent on the deceased in order to bring a claim.

In a wrongful death claim, the damages that a party can recover flow directly from their loved one’s loss. For example, the family of the deceased would be entitled to the lost wages of the deceased. They would also be entitled to any future lost wages that the deceased would make. The goal of the civil justice system is to make plaintiffs “whole again,” and I think a wrongful death claim is an excellent illustration of how that end is almost accomplished. When a loved one dies, the family loses their income, possible pensions, inheritance, and the value of goods and services that they supply. Wrongful death damages attempt to quantify these numbers and pass them along to the family. However, in cases involving the death of a loved one, you can never truly be made completely whole, considering that you have to deal with the tragic loss of a loved one. Wrongful death claims do allow recovery of non-economic damages such as pain and suffering and loss of companionship. Of course, these will never compensate someone for the loss of a family member.

And unfortunately, many states have placed caps on the amount of damages that a plaintiff can receive in a wrongful death action. This usually depends on the number of beneficiaries who bring suit. It is also vital to keep the statute of limitations in mind as well. For example, in Maryland, the decedent’s estate typically has three years from the death of the deceased to file a wrongful death action.

Survival Action

Survival actions are slightly different, but still try to achieve the same goal: requiring the defendant to pay for the costs associated with the damage that they caused. While wrongful death claims are brought by the plaintiffs suing for the loss of their loved ones, survival actions are brought on behalf of the deceased. Think of these as “substitution claims.” Survival actions involve cases where the deceased suffered injuries as a result of another’s negligence but did not pass away immediately. After they do pass away, the deceased’s estate can “substitute” themselves as the plaintiff on behalf of deceased. Here, they are not suing for their loved one’s loss. Rather, they are suing on behalf of the deceased for the deceased’s injuries. Along with economic damages such as lost wages and medical bills, damages for pain and suffering are also recoverable.

In cases where the death was not immediate, most families bring both types of claims. This makes sense. It preserves the right of the victim to sue while allowing the loved ones to seek justice for their loss. While most legal doctrines originate from the common law that dates back many centuries, wrongful death claims and survival actions are a fairly new thing. They were created by statute fairly recently, meaning that the legislature maintains control over how they may be sought and the types of damages that can be recovered.

 

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If you are a plaintiff to a lawsuit, you are asking the court to do something for you. In most personal injury cases, you are asking the court to award damages in your favor, typically by way of the jury. Throughout the course of the lawsuit, there are going to be other “lesser” things that you are going to ask the court to do. For example, perhaps you want the court to exclude certain evidence, protect certain information in discovery, or even dispose of the case without ever having to set foot in a courtroom. Considering that courts are formalized tribunals, you cannot just make a call or send them a letter. This is where a motion comes into play.motions

Motions and Motions Practice

So really, the concept behind a motion is fairly simple. It is a formalized way of asking a court to do something. In motion practice, the pressure is on the parties, not the court. By this, I mean that courts do not file their own motions and direct themselves. The parties are responsible for directing the court’s attention to the issues that can be addressed via motion. In order to do this, a memorandum of points and authorities typically accompanies a motion. This lays out the legal justifications behind why a court should grant or deny a motion and usually includes a statement explaining why they can bring the motion in the first place. Motion practice is not a single-party effort either. The other side has the opportunity to respond to the motion with their own points and authorities. Here, the parties will present oral argument and evidence to the judge as to why they should grant or deny a motion. It is ultimately up to the judge whether to grant a hearing, however some rules require a judge to hold one before granting a party’s motion.

There is a huge strategical underpinning behind motions given how they have the potential to determine how a case will play out or whether it will even continue. I will address some of these types of motions below. However, it is important to realize that there are time requirements for motions, such as when they can be filed and by which date they must be responded to. This has big implications because certain motions are waived if you do not raise them before certain times.

Of course, these are considerations that are generally brought up when dealing with pre-trial motions. Post-trial motions are similar, except instead of asking the court to do something in anticipation of trial, you are asking them to change something about the decision that was made or trying get a new trial altogether.

Types of Motions

Here are some of the most common motions that you come across in civil litigation:

  • Motion in Limine – “Limine” is latin for “at the threshold.” It is rather appropriate then that this type of motion attempts to prevent evidence from entering into the litigation and trial. A motion in limine is filed by a party who wants to prevent the other side from introducing evidence or testimony that is inadmissible.
  • Motion to Dismiss – A motion to dismiss is fairly self explanatory; a party is requesting the court to dismiss the case. There are a couple different reasons why a court would do that. Perhaps they lack jurisdiction; maybe it was filed after the statute of limitations has expired. There is also a motion to dismiss for “failure to state a claim.” Here, a defendant is requesting dismissal because the plaintiff’s case has not sufficiently put forth a legal cause of action.
  • Motion for Summary Judgment – This type of motion is generally filed when both parties have filed their complaints and engaged in discovery. Before trial, a party may seek summary judgment, which is essentially a way of saying that after all of the facts have come out in discovery, there is no legitimate legal dispute between the parties. Stated another way, the facts essential to resolving the case are not in dispute, so there is no need for a fact-finder (jury).
  • Motion for Judgment Notwithstanding the Verdict (JNOV) – This is one of those post-trial motions I mentioned above. After a verdict comes in, this motion asks the judge to set aside whatever the verdict was. In order for a judge to grant this type of motion, they will have to conclude that no reasonable jury could have come to the conclusion that was reached in the case. This is a lofty standard, meaning these motions are rarely granted.
  • Motion to Amend Judgment – Another post-trial motion, this one attempts to correct substantive issues pertaining to a judgment. For example, say a jury determines that the defendant should pay 100% of the plaintiff’s medical expenses, but issues a verdict for $10,000 less than all of those expenses. A motion to amend judgment could be filed to correct that mistake if the jury actually intended to award full costs.
  • Motion for a New Trial – You can probably gather what this motion is for. The main difference between this and a JNOV is that the judge is not entering an opposite verdict than the jury’s, only granting a new trial in the case.

This list has only scratched the surface of motions practice. However, writing and filing motions is a huge aspect of civil litigation, meaning you really need a skilled lawyer to make the most of any litigation.

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Often time you will hear people discuss “forum shopping” when it comes to filing lawsuits. This is the apprehension that it is better to file a lawsuit in some places compared to others. There is definitely some truth to this, especially in places like Maryland where one or two places tend to be the preferred stop for personal injury lawsuits. However, to understand the concept of “forum shopping,” you have to understand the concept of a “forum” in the first place, which entails knowing the difference between personal jurisdiction and venue.

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Personal Jurisdiction is an incredibly important piece of the puzzle when putting together a lawsuit. Really all it boils down to is a court’s ability to exercise its power over an entity, whether that is a person, business, trust, etc. For example, say you are a Maryland resident, it would feel unfair if an Oklahoma court was able to render a judgment over you if you have no connections to that state. That is where the doctrine of jurisdiction comes into play: it is all about the court’s ability to bring you under its power.

So what gives a court the ability to exercise jurisdiction over you? Contacts. Specifically contacts with that court’s geographic jurisdiction. One of the easiest contacts a court can use is residency or domicile. If you are a resident of a state or intend to make your home there, it makes sense that you have “submitted yourself to the sovereign” that is that state, meaning their courts can exercise jurisdiction over you. However, jurisdiction can also come into play if you have contacts within a certain location other than your home state. So say you are a Maryland resident, but you run a business in Oklahoma and spend a couple months of the year there running it. Then it would seem more appropriate for Oklahoma courts to exercise their power over you since you operate a business within its borders.

Personal Jurisdiction and Personal Injury

In personal injury cases, personal jurisdiction only matters for the defendant. The American justice system allows the plaintiff to choose his or her forum, meaning that they can submit to the jurisdiction of any forum so long as that forum also has personal jurisdiction over the defendant. This is where the notion of “forum shopping” comes into play. A plaintiff is obviously going to pick the forum that they feel is most strategically beneficial for their case. Take a slight variation on our example above: say you were injured in a car accident by someone who was a Maryland resident but also had substantial business contacts in Oklahoma. Even though you could sue them in Oklahoma, you would probably sue them in Maryland because of convenience, especially if your comparison of jurisdictions led you to believe you think you would get a better shake in Maryland.

Venue

Venue should be thought of a subset of jurisdiction. While personal jurisdiction is crucial to a court actually having the power to make a judgment, venue is more concerned about geographical convenience. While each state is thought of as its own jurisdiction, there are multiple “venues” within each state where a case could be heard. For example, within the jurisdiction of Maryland, there are 24 separate venues (23 counties and Baltimore City.) So after it is determined that a State has personal jurisdiction over the defendant, you also have to figure out in which venue proceedings will take place.

Determining venue often looks similar to the process of figuring out personal jurisdiction, though the rules are not as strict since a state can exercise the same laws regardless of the selected venue. For example, take a car accident case that occurred in Worcester County, Maryland with a defendant who lives in Baltimore City. Even though venue might be proper in Baltimore City, chances are all of the witnesses and evidence are going to be in Worcester County. It would be a huge pain for all of the witnesses to have to travel to Baltimore for the trial, and it would be even more annoying to haul the evidence all the way from Worcester County as well. So at the end of the day, even if the case was properly filed in Baltimore City, the defendant could ask the court to move the case to Worcester County purely on convenience grounds. Because Maryland law still governs regardless of which venue is ultimately selected, personal jurisdiction is not a concern.

Venue and Forum Shopping

Venue is incredibly important for personal injury cases. In states like Maryland, there are often disparities between the amounts that juries award in urban areas versus those awarded from rural juries. That being the case, plaintiffs’ attorneys always want to file their cases in the most plaintiff friendly venue possible (Baltimore City or Prince George’s County in Maryland).

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Exactly one month ago, I wrote about how the manufacturers of drugs like Levaquin, Cipro, and Avelox are trying to prevent the various lawsuits against them from being consolidated. These lawsuits, which allege that certain antibiotics led to nerve damage, are now poised to become Multidistrict Litigation (MDL) if plaintiffs receive formal approval.

Antibiotic Litigation: July 2015 Update

A few of my blog posts have mentioned the litigation involving antibiotics referred to as Fluoroquinolones. These antibiotics have been linked to serious nerve damage, which can continue long after use. The sheer volume of lawsuits involving these antibiotics is expanding by the week. Currently, there are 59 different cases involving Fluoroquinolone side-effects making their way through the federal court system. What makes that number impressive is that there were only about half as many around two months ago.antibiotics

The plaintiffs in these cases requested consolidation a few months ago. Specifically, they would like to bring the cases before one judge as an MDL for pretrial activities. This is a helpful way to consolidate discovery along with other procedural matters, which, in turn, cuts down on the costs of litigation for the plaintiffs. It is ultimately up to the U.S. Judicial Panel on Multidistrict Litigation (JPML) as to whether the plaintiffs’ request will be granted.  They will hear oral arguments in San Francisco on July 30th.

The original request for consolidation went before Judge David Herndon in the Southern District of Illinois. When that request was filed, there were around 24 separate lawsuits pending in 16 separate Courts. They all involve substantially similar claims: the manufacturers of Fluoroquinolones did not give consumers and doctors adequate warnings regarding the potential for long-lasting and debilitating side effects.

Last month, the manufacturers opposed the What is a motion? (of course), raising the argument that there are too many different drugs at play here. This would, supposedly, make pretrial proceedings more difficult and confusing for the different actors at play. Maybe this is the case, or maybe the manufacturers just want to milk the plaintiffs for every dollar they can spend in discovery. Your call.

Some Background

Chances are, if you are still reading this post, you know what is going on here. But for our new viewers, here is some background on why this litigation is going down.

Back in 2004, the manufacturers of Avelox, Cipro, and Levaquin warned people that nerve damage was a potential side effect of their drugs. Specifically, the main side-effect is a condition called peripheral neuropathy. This condition causes weakness, numbness, and pain throughout various parts of the body. After 2004, the FDA stepped in, addressing the dangers posed by the drug. Specifically, while the manufacturers tiptoed around the potential issues, claiming that the potential for nerve damage was minor, the FDA took a more hardline approach. They warned that Fluoroquinolones could lead to the severe problems listed above, but those problems also had the potential to last long after patients stopped taking the drugs.

Things are different now, but it may be too late for some patients. In 2015, whenever a doctor prescribes one of these drugs, they are compelled to warn their patients about the potential for peripheral neuropathy. This was previously not the case. Hopefully, new patients can have the opportunity to make an informed choice about the drug; something previous patients were not so lucky to have.  That is what these cases are about.  No one is saying these drugs should have been recalled.  But we are saying that doctors and consumers should know the risks and be able to make informed choices.  We are big boys and girls.  We know the harm that can be caused by drugs.  But we should know what those risks are so we can make the best possible choice.

Hiring a Lawyer

Our firm is looking at these class action type claims. We like seeking justice and compensation for people who have been wronged by companies like these. If you want to discuss your options, call us at 800-553-8082 or get a consultation for free online.

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The American civil justice system allows for one type of recovery in personal injury cases: damages. Damages, or compensation, can manifest themselves in a few different forms in personal injury cases. People tend to throw around terms such as “general damages,” “special damages,” “non-economic,” and “economic” damages, so this post should help you differentiate between these various types of damage awards.

Special Damages

What is so special about special damages? Well, not much other than the fact that they can be readily quantified.  Whenever a car accident or other type of personal injury accident occurs, the injured person is going to incur expenses associated with the accident.  These are hard numbers that can be measured.

For example, medical expenses are the most common expenses that people run across. However, special damages can include lost wages and the cost of repairing property. What do all these things have in common? They are easy to calculate. For example, to calculate the cost of medical expenses, you simply add up all of the medical bills. Same goes for lost wages and repair costs. The simple act of multiplication and addition is all that you need to figure out the exact value of these losses. lawmoney

To illustrate, let us take a car accident case where the victim was injured, had to have her car repaired, and missed one day of work. Luckily her injuries were minor, only requiring a quick trip to the ER which cost $600. Her car repairs were minor as well, say $1,000. And she only missed one day of work making $20 per hour ($160 for an 8 hour day). To find out the special damages that stemmed from the car accident, all you would need to do is add up these values, which would total $1,760. This is a pretty basic example, but you get the idea.

Future medical care and medications and future lost wages are also special damages. While these can be a bit more tricky to quantify, expert witnesses can be utilized to predict the value.  I described these numbers to a client on Friday who has $450,000 in future medical bills as “sort of” hard number. The best future numbers are a clear surgery that has been scheduled or must be had.  The toughest of these might be future pain medications.  Insurance companies — and occasionally juries — are sometimes loathe to give pain medication in the future even for victims who truly need it.

Keep in mind these numbers hold in equal force even if insurance is expected to pay for these future bills.  Juries are not told that

General Damages

Speaking of tricky to quantify: general damages. This type of damage award is comprised of the “intangibles,” if you will, of being the victim of someone else’s negligence. Although they are considered non-economic damages, they still flow directly from the defendant’s act that caused injury. Take our example above: chances are, even though our victim’s injuries were minor, she experienced some physical pain in the crash. Maybe she also suffers mental anguish over the accident, preventing her from driving. These are all general or “non-economic” damages. These can also include compensation for physical impairment, disfigurement, loss of companionship (for family members in a wrongful death case), and loss of quality of life.

As you can see, it is difficult to value general damages, meaning juries are the ones responsible for living up to that task. Is pain and suffering worth $1 or $1,000,000?  At the end of the day, only the jury knows.

Caps

Unfortunately, many states have non-economic or general damage caps that limit the amount of general damages that a party can receive. For example, in Maryland, the most a plaintiff could receive in general damages in 2015 (generally) is $815,000. So even if the jury determined that they should receive $1,000,000,000 in non-economic damages, the judge would be forced to reduce that number to $815,000. Advocates of tort reform claim that these caps prevent verdicts from getting out of control, but critics note how they often prevent victims from getting the full amount of compensation that they deserve and were awarded by an impartial factfinder.

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Discovery is the most important part of civil litigation (apart from the trial.) Discovery also tends to be the most expensive part of civil litigation. This is often a long and exhaustive process that entails most of the legwork in litigation. At the end of the day, though, discovery is really only about one thing: getting information from the other side to use at trial.

Discovery: An Overview

When one party sues another, they have to (or at least should) have information that supports their claim. Granted, they do not need to prove their case in the complaint. But going in they should already have enough information to know that their claim has a basis in both law and fact. Once the complaint is filed, they can fine tune the information that they have and supplement it using discovery. Discovery should be thought of less as one amorphous thing and more so as the combined efforts of various discovery devices. More on that later.

One of the reasons discovery can get expensive is because its scope unbelievably wide (although it is getting more narrow of late).  Parties can utilize the discovery process to find any piece of information that is reasonably calculated to lead to the discovery of admissible evidence. And just because the information sought is not admissible in and of itself, it is still discoverable on the chance that it might to lead to something that is. Information obtained during discovery will also be public record if it makes its way into the court file, so there is also a potential that a person or corporation may have to put personal or sensitive information out there. There are, of course, ways to shield this from happening, but a party will have to show a judge that the information should be protected before the any information will be shielded. The discovery process also does not go on forever. A judge will set out a schedule, during which discovery can be obtained. If information is discovered after the final date, then it cannot be utilized at trial.

Discovery Devices

As I mentioned above, discovery does not manifest itself in one party asking the other for everything that have that is relevant. Discovery is somewhat formalized, utilizing certain devices to obtain the necessary information. Those devices include: interrogatories, requests for production, requests for admissions, subpoenas and depositions.  You can find examples of all of these on our website.

  • Interrogatories – These are questions that one party sends to another. They have to be answered under oath and within a certain time frame. Depending on which state or court system you are litigating in, the number of interrogatories may be limited. Parties usually send interrogatories asking about personal information and the background of a party. Interrogatories may also attempt to find out the names of witnesses.
  • Requests for Production – Requests for production allow one party to seek documentation from the other. Typically this results in one party sending a ton of documents to the other party. But RPDs may also ask for access to documents or data, meaning one party is asking to inspect the data of another party. There typically is no limit on these, so parties can end up being buried in documents if they do not craft these carefully. With both RPDs and interrogatories, a party can object to a request if it is too broad or seeks privileged information.
  • Requests for Admissions – This discovery device is used to figure out what is actually disputed in a case. Since lawyers tend to act like lawyers, they attempt to dispute everything. Requests for admission ask the other side to specifically admit or deny facts pertaining to the case. These are usually pretty effective because if a party fails to respond to a request, the fact that was being disputed in the question is automatically admitted. Granted, it is not like these requests attempt to resolve every factual dispute; that would basically eliminate the need for a trial. They attempt to settle the minor disputes so the trial can be a bit more focused.
  • Subpoena Duces Tecum – This is a request for production of documents to a third party. Document request to a a third party ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In most jurisdictions, a pretrial subpoena seeking documents from a third party is not controlled by the discovery deadline. So you can give one to, for example, an expert who is testifying at trial.  But local rules control this question.
  • Depositions – Depositions are basically a way of taking witnesses testimony outside of the courtroom. They usually entail face to face questioning of witnesses or parties by the other party’s attorney. Each party is represented at a deposition, meaning objections can be made. But, of course, there is not judge there to make a ruling. So these are noted and dealt with after the fact. Parties generally have to answer whatever questions they are asked at deposition, meaning refusal can often warrant sanctions from a judge later on.

Discovery Tactics

Lawyers often take advantage of the high cost of discovery. A lot of the personal injury litigation that is discussed on this blog involves private plaintiffs taking on big corporations. These big corporations have plenty of money to throw at litigation and lawyers.  In many of these cases, the key is to get a MDL class action so all of the plaintiffs can bear the discovery costs together.

Litigation is a two-way street, though, and plaintiffs can bury a big corporation that forces them to expend millions of dollars and thousands of man hours just to comply with the request. Given how big the scope of discovery is, this really is not all that hard to accomplish. So although discovery is primarily used as a way to gather information, it can also be used tactically to induce one party into settlement.

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Over the past couple of years, I have written about some of the problems involving Wright Profemur Hip Implants. A few cases have settled but nothing game changing that has an impact on the settlement value of the Wright hip implant cases.  But a big verdict in California sends a huge message that impacts the settlement value of these claims.

$4.5 Million Verdict

Wright is currently defending around 1,200 metal hip implant cases throughout various courts across the United States. The first of such to go to trial netted a big verdict for the plaintiff, perhaps giving Wright a taste of what is to come if more go to trial.  If this case is any indication, they can expect financial pain.hipimplant

This case was a little different than some of the other cases against Wright, which claimed that the metal components in their implants grind together and release toxins into the blood. The plaintiff here claimed that the hip implant was defectively manufactured and caused him injury. Specifically, he claimed that while he was standing in his kitchen, the hip suddenly snapped causing him serious difficulties. Plaintiff’s attorneys claimed that a laser orientation mark was engraved too deeply within the device, causing it to be mechanically unsound. The device, which is supposed to last for well over a decade, broke within three years so there was obviously some sort of manufacturing defect here.

The plaintiff’s scenario was really unfortunate; he required over fourteen surgeries and had to deal with years of infections and dislocations. To top it all off, Wright never really offered him a fair settlement either, with their highest offer being $455,000. At trial, they tried to pass the blame on to surgeon who placed the device in the plaintiff’s body. Classic medical device manufacturer move: blame the doctor or anyone else in range. But plaintiff’s counsel drew attention to the fact that Wright essentially used the surgeon in this case as their “in house” surgeon to use their implants and train others on how to place them. So really, their argument was that the guy who is literally the most familiar with their implants and how they work was unfamiliar with how to use them.

Otherwise this was, as you would expect,  pretty expert heavy case with the bulk of the arguments concerning how Plaintiff or Defendant’s experts. In the end, the jury got it right. The other 1,199 cases are current pending in either California state court or in Multidistrict Litigation before a Georgia federal court.

Hip Implant Problems

Issues regarding metal on metal hip implants have been fairly widespread. There have been a number of lawsuits involving Stryker Rejuvenate and ABG II hip systems, among others. Most of these lawsuits involve claims that their designs are prone to corrosion and fracture in the neck of the femoral stem, which is obviously something that patients did not expect nor were they warned about. These issues have raised eyebrows at the FDA, who has been investigating metal-on-metal implants since around 2011. They specifically received a heads-up that the chromium/cobalt ball and cup caused devices to shed little pieces of metal into the tissue and bloodstream. Naturally, the companies have been trying to downplay the issue, suggesting that it was not as serious as it seems. However, this latest verdict just goes to show that juries are ready and willing to dole out some serious coin for these cases. This will hopefully make companies light Wright more willing to settle cases down the road. It may even convince some plaintiffs — and their lawyers – to keep slugging it out if they are on the fence about accepting a so-so settlement.

If You Have a Claim

If you have a claim, time might be running out.  It could already have run out.  You need to act quickly.  Call 800-553-8082 or get a free on-line consultation.

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There have been a lot of interesting personal injury and wrongful death verdicts and settlements in 2015 in Pennsylvania.  Here are five verdicts you will find of particular interest.

$450,000 Verdict – A woman is descending the stairs at her row home when she slips on one of the middle steps. She reaches for the hand rail, but just misses it, causing her to fall down the remaining stairs. The woman calls an ambulance, which transports her to the emergency room. At the ER, she is diagnosed with a fractured shin bone and a tear of the quadriceps. She has to receive care after the fall given that her leg is immobilized. After the accident, she sues the property-owner, alleging negligent maintenance of the stairs. In her lawsuit, she brings up the fact that she had told the property-manager about how slippery the stairs were on two occasions. At trial, her stair-expert suggests that the stairs were covered with too much polyurethane. This convinces the jury, who awards her $450,000. paflagbl

$207,940 Verdict – A postal worker is delivering mail in her mail truck when a Lexus sedan suddenly crashes into the front of her vehicle. The Lexus was traveling in the opposite direction as the postal worker. She strikes her face on the steering wheel, causing facial and chest pain on her left side. An ambulance transports her to the ER where X-Rays come back normal. She is still experiencing pain though, so she seeks treatment and physical therapy. Her primary care physician determines that she suffered disc herniation and a concussion from the accident. She sues the other driver, who admits liability. In addition to the physical injuries, the plaintiff complains that she is unable to spend quality time with her dying mother as a result of the injuries and physical therapy. She also claims that she is unable to do the recreational activities that she used to be able to do. At trial, the defense does not use a medical expert, but instead just claims that the injuries are not as severe as they were made out to be. The jury returns a verdict for $207,940.

$488,800 Verdict – A 58 year-old man walks into a grocery store to do some shopping. He reaches for a basket when he suddenly slips and falls on a puddle of water that had accumulated from a leaky roof. He strikes the back of his head when he lands on the floor, which causes a significant bump. An ambulance takes him to the ER where MRIs are administered but come back negative. He undergoes physical therapy for disc herniation, requiring him to miss work intermittently. The man decides to sue the store’s owner, suggesting that employees had notice about the roof problem for years but did not address it. At trial, store employees testified about this issue, and the only real dispute was between the the store and the store’s parent company as to who was responsible for satisfying a potential judgment. Still, they also contest whether the plaintiff’s spinal injuries were actually the result of a preexisting condition that stemmed from a surgery which occurred many years before the accident. In the end, the jury deliberates for 5 hours and awards the plaintiff a judgment of $488,000.

$4,875,200 Verdict – A 50 year-old woman presents to a hospital with intense fever and pain to her lower back and legs. She had undergone a procedure to remove part of her vertebrae to relieve pressure on her nerves a few weeks prior. The ER doctors diagnose her with an infection after she was unable to secure an appointment with the doctor who performed the surgery. She was also unable to get an appointment with an internist, so she had to remain at the ER hospital until she was finally transported to a different hospital the next day. At that point her condition began to deteriorate, requiring her to undergo surgery on the infected area. Unfortunately, it was too late as bacteria had already destroyed parts of her spine, rendering her a quadriplegic. She sues the hospital, ER doctor, and the chief resident of the hospital where she was transported after leaving the ER. She claims that the hospital did not provide adequate care, and that she should have received immediate surgery to remove the bacteria. Specifically, her experts suggested that there was neither an adequate triage system in place nor appropriate record-keeping to document her condition. The various defendants blame one another for the plaintiff’s injuries but stress that she should have received immediate surgery upon presenting to the ER. In addition to her paraplegia, she must take medication which continually makes her drowsy. She also lives near a school, so the sound of buses constantly reminds her of the job that she once had and can no longer perform. The jury found the defendants equally liable for the plaintiff’s injuries, returning a verdict for $4,875,200.

$5,000,000 Settlement – A school employee is walking the halls of her school when a company putting tiles down asks her to open a door. Unknown to her, they had just put a slippery surface down right in front of the door. She slips on the surface and lands on her back. 24 hours later, she experiences pain in her lower back and hips, so she presents to her medical provider, who puts her on physical therapy. A later MRI reveals that the woman actually suffered fractures and tears in the tissue around the hip joint. This leads to doctors diagnosing her with complex pain syndrome, which causes her pain and discomfort throughout her entire leg. She suffers a permanent limp that prevents her from returning to work. She sues the tile company, alleging that they invited her into a construction zone without taking safety precautions, which eventually led to her injuries. Prior to trial, she settles with the defendant for $5,000,000.