Protecting Consumers from the Wrongful Actions of Corporations.
By and large, corporations do great things for our society. We all benefit from their advancements and creations on a daily basis. But sometimes, a decision is made to put profits ahead of safety. My job now is to seek justice for those who are hurt by those wrong decisions and to ensure that companies make better decisions in the future. Richard J. Hood
Corporations play an important role in the advancement and operation of our society. With this role, comes a responsibility to protect the public by ensuring their products and services are safe. When corporations withhold important safety information in order to protect their bottom lines, they can and should be held accountable for any resulting damages.
At Atlas Partners & The Hood Law Firm, we take this responsibility seriously and serve as advocates for individuals and families that are affected by the wrongful decisions and actions of corporations. We offer aggressive and knowledgeable legal representation for persons who suffer as a result of defective products and drugs and help affected individuals and families seek justice for wrongful actions, including:
Richard J. Hood, founder of Atlas Partners and The Hood Law Firm, is known for his experience and success in product liability law. He is passionate about helping individuals and families across the country who have been hurt by corporations that have chosen to conceal important safety information about drugs, medical devices and other products and strives to hold the responsible parties accountable for their actions.
Mr. Hood is not afraid to challenge the most successful corporations for their wrongdoings and is equipped with the knowledge, skill and determination to obtain maximum financial recoveries for his clients. To learn more about our law firm or the areas of law in which we practice, please browse our site. If you would like to discuss a possible injury claim, please contact us today by calling (844) 446-4663 or send an email to our firm.
We are here for you!
We represent individuals who are harmed by side effects of drugs when drug manufacturers fail to warn doctors and patients.
We represent individuals who are harmed by medical devices that are defectively designed or manufactured.
Here are answers to frequently asked questions about products liability mass torts. Please review the questions and answers below. If your question isn't here, please do not hesitate or contact us by phone or email.
(This FAQ section should not be considered legal advice nor does reading it create an attorney / client relationship.)
A tort is a civil, not criminal, wrong recognized by law as grounds for a lawsuit. Mainly, a tort comes about when a person, including a corporation, wrongfully injures another person. A mass tort is when an individual's wrongful acts or a product or a class of products is defective and that defect hurts a number of people.
In a mass tort, it is often more efficient (and ultimately their clients are better served) for a lawyer representing a number of injured people to combine forces with other attorneys representing similarly injured people. Oftentimes, these attorneys will seek to consolidate the cases from all across the country before one judge. This one judge will be responsible for the conduct of the common pieces of a mass tort like discovery and pre-trial motions.
Why consolidate? Many of the companies involved as defendants in bad drug, bad device, or bad product litigation are among the largest, multi-national firms in the world. As you may imagine, these companies have the resources to spend vast amounts of money to defend their products. When a company has that much money and has a lot at stake, it will hire the best law firms in the country. Many of these law firms have 1000s of lawyers.
Firms like ours that represent individual plaintiffs average fewer than a dozen lawyers to litigate your case and usually only twice that number of paralegals and/or case managers to work with you on specific injury and proof issues. We may be very talented lawyers, but because a handful of lawyers can't be in 20 cities at the same time to take or defend depositions, sometimes a lot of talented lawyers from different firms need to work together for our clients' common benefit. When we combine forces, we can greatly strengthen and enhance our ability to support our clients and combat these corporate giants.
A class action is one way to resolve a mass tort, but not all mass torts are class actions. In a class action, one or a few “named plaintiffs” represent a group of people. A class action is a way for a large group of people who have common facts and legal theories about their typical injuries and causes to also have a common resolution. In the 1980s and '90s, lawyers resolved class actions where several individuals were physically injured by a drug. But the law has evolved and courts no longer favor class actions to resolve physical injury mass torts. Currently, class actions are for economic injuries, or injuries where people's pocketbooks are injured and not their bodies. In modern Mass Torts, the personal (physical) injury cases are handled in Multi-District Litigations which are handled and resolved as multiple, single-injury cases. Class actions are used to resolve the parts of drug and device cases that center around refunds to consumers because the drug didn't work as advertised or to pay for medical monitoring for potential future injuries related to a failing implanted device.
Depending on what stage in which you join a mass tort litigation, it may take between 3-7 years to resolve your individual portion of a mass tort. It is not a fast process.
While we strive to maintain contact with clients and to provide periodic updates, we can get pretty busy. As you will see in the answer below, our attorneys will be very busy and there will be a lot of moving parts in the actual litigation and our staff and experts will be requesting and reviewing client medical records, but there will be very few updates that directly affect a client's individual claim. In Mass Tort cases, no news is generally good news; however, please feel free to check in with us periodically for a brief update (be prepared to hear that there is no update) and always feel free to call us if you remember something that affects your claim or if you need to update your contact information.
General stages of a mass tort litigation:
Before we can file a lawsuit or take on more than the first client(s) who introduce us to the case, our firm works diligently to investigate and research the suspect drug, device, or product and the connection between our clients' claimed injuries and how the product more likely than not caused or was a factor in the injury. During this stage, we consult with expert scientists and medical practitioners to develop the scientific theory and liability story of how the product interacts within the human body to cause a physical injury. This stage requires a significant investment in time and money by the firm.
After you retain us as counsel, our paralegals and case management staff work closely with you to gather medical and pharmacy records to establish:
Initially, we may ask you to gather your or your loved one's records. If that is too difficult an undertaking or if we need records for locations that are closed or may have changed its corporate structure, we may need to engage medical records retrieval specialists. In our experience, this step in the process can take a long time because most people injured by drugs or devices visit many different doctors, hospitals, and pharmacies over the course of their taking the drug or dealing with the device and then dealing with their resulting injury. The first location you think of may not be correct. The most important thing we can do to support you and any of the other litigation steps is to communicate. When we contact you to get more information about anything, please get back to us. If you move or change your phone number or email, please contact us with your updated info.
We do not file lawsuits to harass companies or to get a case filed ahead of other plaintiffs' law firms. We take our duties and responsibilities as attorneys very seriously and will file a law suit on your behalf only after we have done a reasonable inquiry into the law and facts of your particular circumstances. That means that we have retrieved necessary records and the firm or trained experts review those records. We file cases as they are qualified by the facts or no later than the Statute of Limitation (the time limit set by state law for when a law suit may be filed for a products liability case) for your particular case expires. The timing depends on legal considerations and the cost of filing. Once a suit is filed, the defendant can commence discovery on you and your background.
The defendants spend a lot of money and time reviewing each filed plaintiff’s facts and evidence. Once we file on your behalf, defense (defendant company’s teams of lawyers) will:
It may seem intrusive, but it is a part of the process.
We will also have to fill out a Plaintiff Fact Sheet (“PFS”) that discloses to the defense your medical history and other information that is relevant to your law suit. Rest assured that your attorneys will negotiate the scope of the PFS to minimize the intrusion into your private life and to limit the amount of information and effort you need to expend to pursue your claim.
Most of your interactions with the firm will be with paralegals, case managers and our consulting experts. Your attorneys supervise the actions of the firm’s staff and agents, but they spend the bulk of their efforts: engaging defense counsel, reviewing defense evidence, taking and defending depositions of witnesses and experts, developing scientific and legal theories, traveling to defense and expert locations, and attending, arguing and presenting in court.
Our litigation attorneys create and work within the Multi-District Litigation ("MDL") and any State Court Consolidation proceedings. The MDL and state court coordination phases are these:
Our goal is to resolve the bulk of our clients’ claims by settlement. We are prepared to go to trial, but trials are very expensive. Trial expenses are initially paid by the attorneys, but eventually those expenses are reimbursed by the plaintiff out of his or her recovery. Even if you win at trial, the defendant(s) can appeal and the large jury award numbers you read in the news are eventually reduced by a private settlement to a much lower number than the jury award. That number never makes the news. Court costs as well as all other costs associated with an individual claim in trial (attorney fees, expert fees, filing fees, etc.) are very expensive, and a jury trial is much more of a gamble. So settlements are generally how we resolve mass torts.
As opposed to class action settlements where every class member receives the same award (usually a coupon or credit, not money), mass tort settlements are individualized to the plaintiffs’ facts and circumstances. Even when the settlement is for a large group, how neutral claims administrators divide the settlement funds among the claimants is individualized and fair in its distribution. It is extremely important to note that the resolution process that occurs after settlement can take six months to several years. A neutral claims administrator must qualify all the claims, get claimants to outright accept or appeal then accept their award, and clear any potential liens (bankruptcy, Medicare, Medicaid, etc.) before settlement funds can be released to our clients.
The decision on when to file has to do with a number of strategic and procedural factors. This firm is happy to discuss with it’s clients these factors as they apply to both their individual cases and the litigation as a whole. Nonetheless, following are a few things many firms experienced in mass tort litigation consider:
1) Pre-MDL - If there is no MDL (multidistrict litigation or other type of consolidated mass action) formed, then the decision whether to file a lawsuit is largely based on jurisdiction, venue and statute of limitation (SOL) issues. What this means is that where the client resides or was treated/injured and when they were injured (in some cases when they reasonably discovered their injury and who or what injured them) may be factors regarding whether or not to file suit prior to the formation of an MDL. As to where to file pre-MDL, of the 94 Federal District Courts throughout the country, there are only a handful of locations where it inures to the common benefit of all similarly injured persons to file a pre-MDL suit. The rules for discovery and the treatment of scientific evidence are nuanced throughout the districts, filing in the wrong place may severely hurt your case and the cases of others. However, you can’t just file a lawsuit in “good law” districts. You must either reside in or have had some nexus or significant presence or ties with these Districts.
Additionally, even if someone lives in a strong MDL District or state court jurisdiction and they have a worked-up file, initiating a lawsuit there may be against the strategic interests of the client and potentially the entire litigation. The first cases filed before an MDL is formed may have significant discovery and motions practice*1 on their case in front of a judge who doesn’t want this complex type of case before him or her.*2 The rulings on these motions may have a negative impact on the client’s ability to appeal and a negative precedential effect on cases that follow behind it.*3
Most complex and expensive litigation like pharmaceutical and medical device products liability depend on the creation of coalitions of experienced plaintiffs' lawyers who pool their experience, expertise and financial resources together to develop a strong case. If you file early and in a disadvantageous District, you likely will have no support; thus, you will be litigating alone.
The reason we have mass torts is for the pooling of resources. It takes millions of dollars and 10s of thousands of attorney and paralegal hours to successfully fight the massive companies in Big Pharma.*4 Even the largest and best plaintiffs' firms cannot and do not take on these companies by themselves. If you file by yourself, then you will have to develop medical and scientific experts (the better they are the more expensive they are), you will have to read through millions of pages of emails and documents to find the less than 100 good documents you will present in trial, and you will have to present your case in roughly 2 years time.*5
Obviously, if the SOL is running out and you need to file, then the above considerations are moot. You file in the most advantageous jurisdiction and venue legally available.
2) Post-MDL - After an MDL is formed and assigned to an MDL judge, the cases that are filed throughout the various Federal District Courts are transferred to the MDL court. Under a Federal case called Lexecon v. Milberg Weiss*6, the MDL judge can only try cases from the MDL court’s Federal District. For the vast majority of cases, filing a suit before it needs to be filed based on a SOL calculation does not appreciably, positively affect a client’s outcome. Indeed, it may hurt the claim by exposing it to motions to dismiss and needless discovery requirements like the defendant getting HIPAA authorizations and requesting client’s medical records. Worse, the client may have to give up access to their social media history. The only reason to file early and from outside the district is if your case is well worked up and has no warts (confounders to negatively impact the case). You may file this type of clean case to get it into a potential Bellwether trial pool and there is a willingness to waive Lexecon rights.*7
3) Timing in General - Filing early does not move a client's case along any faster. Individual cases do not normally resolve with finality at different times. They resolve via settlements in waves.*8 Cases that actually go to trial AND are successful at trial often have high jury awards. Unfortunately, the high awards are always appealed. The appeals process can take many years and can end in a loss.*9 Most cases that win at trial are eventually settled for an undisclosed sum that is far lower than the jury award.
Filing based on the SOL can be the best way to protect a client’s right to file and to protect the client’s privacy interests. This, however, is general information and does not apply to every injured person. If you have a question about the intersection of the law and your specific facts, please contact your attorney’s offices. If you are a client of this firm, please do not hesitate to contact us.
*1 There are a number of ways to get bad rulings in a case - filing Rules of Civil Procedure motions to dismiss, remove, summary judgement (these end a case) and filing of Rules of Evidence motions to exclude under Rule 702 - Daubert and motions in limine get rid of the case (these can either end a case or prevent a plaintiff from bringing important evidence to a jury).
*2 Federal Judges have huge criminal law dockets that have Constitutional Right to a Speedy Trial issues. Complex products cases mess up Judges’ calendars. According to Federal Judicial Center statistics only 1% of civil products cases ever make it to trial. The majority are dismissed through motions practice and some smaller percentage are resolved by private settlement.
*3 Precedential effect or collateral estoppel/issue preclusion occurs when an issue of law or fact is decided upon by one judge, that decision may be used to guide another judge deciding a case involving the same drug or device with similar facts and law.
*4 In one my cases, Bayer is represented by: Shook Hardy & Bacon (500 attorneys); Drinker Biddle (600 attorneys); Gordon Rees (800+ attorneys); and Goldman Ismail (>50 attorneys). The attorney numbers do not include the contract attorneys who are hired to review the millions of pages of documents that are generally responsive to plaintiffs’ discovery requests, nor does it include the paraprofessionals (usually 2:1) who do a lot of the work.
*5 A law firm who initiated one of my litigations was a small city, local personal injury firm. In 2013, they thought they had a great client with an interesting case fall into their lap. They then then found more clients like their original client and thought that other firms were finding them as well. But no other firms did. So they litigated several cases almost to trial with no other firms to assist them (They are great lawyers - other than resources they were more than a match for the defendant). They had mixed success and spent over a million dollars of their own money, but they had no verdicts or settlements because their defendant was easily fighting them off in courts all over the country. Now that we have an MDL for that litigation, that small firm has the financial and legal assistance of 12 other plaintiffs’ firms. Through the work of the MDL Plaintiffs’ Steering Committee, they have reviewed several million more emails and documents and we were able to find many needles within the proverbial millions of pages paper stack to prove our claims against the defendant. With our combined resources, we also hired higher caliber medical and scientific community experts from all over the world. The small firm initially acting alone admittedly could not have identified or even afforded the experts we now have.
*6 Lexecon v. Milberg Weiss, 523 U.S. 26 (1998), holds that MDL judges lack authority to try cases that originated outside of their District Court. Thus: The MDL Panel coordinates a bunch of federal Mirena cases in Manhattan - SDNY. A plaintiff files a Mirena case in federal court in Chicago. The MDL Panel ships the NDIL case to SDNY. The MDL court in SDNY has the power to conduct all pretrial proceedings, but the SDNY court can’t try the Chicago case; the case must be sent back to NDIL for trial. Sometimes it might make sense for the MDL court to try the NDIL case, so parties sometimes execute so-called Lexecon waivers: The parties waive their rights to have the case remanded for trial and consent to a trial before the MDL (here, SDNY) judge.
*7 Just remember that the jury pool for a Lexecon waived case will be from the MDL court’s jury pool. Southern Plaintiffs don’t generally do well with Northern juries and vice versa.
*8 There are three main types of mass tort settlements: 1) national (all claims resolve at once with a national claims administration process) 2) inventory (all of a law firm's or coalition of law firms’ cases (filed and unfiled) resolve in a batch separate from other law firms. 3) individual batches of clients (mostly occurs in small products cases where the number of affected people is relatively low).
*9 In Vioxx, Mr. Ernst’s family filed suit in 2002, they won $253.4 million at trial in 2005. The verdict was appealed. In 2008, the appeals were finalized and the Ernst estate got $0.
We can never guarantee that ANY case will reach a settlement or receive an award at trial. We are confident, however, that we have weighed the general facts and law and our experiences with these types of cases against these same defendants to determine our probability of success and approximate values. The majority of our cases will be resolved positively for our clients; otherwise it would not be proper to seek out additional clients beyond those who brought the case to our attention. What we can promise is that:
Once we (for our group of clients) or the Plaintiffs' Steering Committee (for all plaintiffs in the litigation) enter into a master settlement agreement, we can give clients a more concrete answer as to whether their claims will qualify for settlement and generally for how much it may settle.
There likely will be multiple times throughout the course of the litigation when disclosure of some of a client's personal information is necessary. First, because of HIPAA laws, we cannot obtain medical records without giving the client's medical provider personal information in order to retrieve his or her medical records. We must be able to supply enough information to prove that clients are who we say they are. Second, the defense must be given the opportunity to obtain plaintiff medical records, as well, and they, like us, cannot get these without sufficient personal information. Additionally, in order to file a claim or participate in a settlement, we again must be able to provide enough information to the court and defendants to prove plaintiffs are who they say they are and to establish lifestyle facts and medical histories relevant to the case. Finally, the courts and any appointed settlement administrators may require personal information to determine whether or not plaintiffs are already represented by other counsel or have any outstanding issues (e.g. bankruptcies and liens) that would prevent them from releasing settlement funds.
Nevertheless, we will never share a client's private information with outside parties without the client's prior knowledge and consent. We safeguard client information and use it only as necessary to prosecute a client's claim against the defendant.
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