In successfully navigating, surviving and winning such claims, device firms want—like LeBron James—to assemble a winning team. Missteps can cost millions of dollars if an attorney representing the medical device company mishandles a product liability case.
Successful defense of a medical product liability case is a team effort. While the defendant device firm is the target, a key team member is the attorney who will defend the company and the product’s safety in the case. Thus, a key step in surviving and winning a product liability lawsuit is wisely choosing the defense attorney who ultimately may enter a courtroom on the manufacturer’s behalf.
When might defendant device firms involve themselves in selecting defense attorneys? At least four scenarios could arise:
- A preferred attorney has defended the company in the past, chosen by a prior insurer, and the device firm feels comfortable with that lawyer;
- A conflict of interest arises between the device company and the insurer, which has “reserved coverage rights” because it says some features of the claim may be excluded;
- The potential claim value exceeds the device company’s insurance limits;
- The device firm lacks confidence in the defense attorney chosen by the product liability carrier and insists on different counsel.
By contrast, smart choices in counsel selection will produce better case outcomes, manageable costs and better service. Smart choices are more likely when device firms have the right tools and questions for joining in the search.
What criteria should device companies weigh when vetting a defense attorney? Here are seven vital areas to assess:
1. Technical knowledge of the law in the device realm. Most crucial is that the attorney have subject matter expertise in defending medical product liability cases—Even better if the attorney has expertise in the device company/defendant’s niche, whether that is durable medical equipment, ventilators or diagnostic imaging technology. Some defense attorneys specialize in specific areas of products, ranging from aviation, trucking, consumer goods or food-borne illness from eating suspect foods. Not all self-proclaimed “product liability defense attorneys” are created equal or equipped to capably defend technologies developed in an environment regulated by the U.S. Food and Drug Administration.
Have the candidate provide an overview of subject matter expertise in defending product liability cases, citing any area of medical device concentration.
2. Feedback from other clients, preferably in the device arena. Network with fellow device representatives (such as at conferences or trade events) to see who is recommended as an effective defense attorney. Cull these from exchanges at medical conferences, seminars and from informal chats with colleagues. If the same attorney names keep surfacing repeatedly, that is a good sign.
3. Pro-defense philosophy. All too often, defense attorneys who work for insurance companies are settlement oriented. Directed by the insurance company, they may recommend paying defensible claims simply as a matter of expediency. This approach may be sound when defending car whiplash cases or a tumble at the local grocer. This makes no sense, however, when a device firm’s product, insurability, reputation, brand and market standing are at stake.
4. Conflict-free. Some attorneys focus on product liability on the plaintiff side. This is not necessarily bad or an automatic disqualifier when considering a defense attorney. The fact that a lawyer has pursued plaintiff cases against device firms might mean that he or she is well-versed in how to mount an effective defense.
Additionally, some self-branded product liability defense attorneys predominantly defend physicians against medical malpractice claims. While there is nothing innately wrong with this, such attorneys might view facts through the lens of the physician. Often there are multiple physicians, a physician is a codefendant, and the lawsuit involves blended allegations of medical malpractice and product defect. The fact that the attorney being considered defends doctors need not be an automatic disqualifier, but may not necessarily be a plus. All things considered, if the device company can find an attorney whose product liability experience is predominantly or exclusively on the side of device firms, that may be a recipe for a successful attorney selection.
5. Soft skills for great customer service. Device companies want and deserve a defense attorney who will view the device firm—not the insurer—as the client. This may be difficult, particularly if the lawyers receive most of their business from insurers, not directly from device companies.
What is service-orientation in a legal context? Best-practice traits include:
- How quickly does the attorney return phone calls?
- How promptly does the attorney answer e-mail?
- When phoning the office, are callers put on hold or quickly passed on?
- Is the device firm treated like a number or an individual?
- How often does the attorney provide updates on the case’s progress?
- Are communications substantive and meaningful?
- Does the attorney make clients feel that he or she understands the key issues in the case and is fighting on their behalf?
While that may be fine as a general approach, in reality that notion can erode if the lawyer relies on the insurer for a steady stream of cases. The attorney can start viewing the insurance company as the client or as a co-client. Tip: have a frank discussion with the attorney, asking him or her: “Who do you view as your client here?”
7. Positive Chemistry. Employees at a device firm that is sued for product liability will suffer stress. The process can be an emotional roller coaster. Reading and hearing plaintiff experts criticize a product’s design, manufacturing or warnings is stomach-churning. Submitting to depositions and being grilled for hours is stressful. The ordeal of trial can crack the poise of the most poised professionals. Since the journey will be bumpy, it is best to share the ride with someone who wears well and with whom you and your management team are simpatico. Here are four questions to use to maximize the odds that the ride will be smoother:
1. Who are your other medical device clients? Get names, addresses and phone numbers. Seek references in the medical device field. This facilitates making apples-to-apples comparisons. Follow through by checking references. Gauge the satisfaction of other device firms.
2. What are your credentials in medical product liability defense? This is not the time or arena for generalists to cut their teeth. Press for specifics with the following questions: Who have you represented in this specific area? Without breaching confidentiality, can you cite specific cases you’ve handled in this field? Have you or your firm written any articles on product liability? What continuing education on medical/product liability have you attended in the past two years?
Since lawyers often lapse into “rainmaker” mode, pointed questions help determine whether the representations are genuine or marketing dross.
3. What’s your batting average? If product liability is a lawyer’s specialty, he or she should know. Hemming and hawing is a bad sign. As management guru Tom Peters said, “That which gets measured gets done.” If attorneys or law firms do not keep score, do not formally track outcomes in cases like yours, how serious can they be about handling that type of assignment?
4. What is your claim or litigation philosophy? If the response is a blank stare, that is a disquieting sign. Some attorneys will (and should respond): “Our philosophy is guided by our client’s philosophy.”
Good answer! If device companies prefer to fight claims, a settlement-oriented law firm will not be a good match.
Make sure you and the lawyer share the same wavelength as to settlement or defense philosophy. Spend time early on finding out. Better to learn sooner rather than later whether you or your management team are incompatible with defense counsel than to get into product liability litigation, only to discover that the insurer-selected counsel recommends paying a claim just to be rid of the case.
By the same token, if the case turns sour and should be settled, you need an attorney who is a straight talker and who can deliver bad news unreservedly.
While these are challenges to making quality decisions, another problem device firms face is that the insurance policy typically constrains a company’s role in counsel selection. In fact, some device executives may feel, “I’m insured. Isn’t counsel selection the insurer’s job?”
Yes and no. Even if you are insured, the device company should get involved in the counsel selection process. How?
A device firm’s bargaining leverage is greatest when considering coverage before buying the policy. Ask each candidate carrier, “Can I have input on the counsel selection process?” Prepare a compelling case as to how counsel of the device firm’s choice is cost-effective and knowledgeable. Do your homework and have specific counsel in mind.
Moral: Just because a device firm has product liability insurance, does not mean that the device firm is powerless to pick counsel or to shape the selection process in ways which advance its interests.
Litigation is a risk for any medical device firm, but it’s a manageable one. Part of that risk management process is getting off to a good start by partnering with the right defense attorney possessing subject matter expertise, soft skills, and who understands that the medical device firm is the client.
No one will mistake the attorney selection process with the excitement of LeBron James’ homecoming to Cleveland. Nevertheless, both processes have much in common. Much money, successful outcomes and career paths are shaped by making wise choices.
In assessing the product liability landscape, it is easy to get depressed and fatalistic. Neither is the answer, nor is cynicism. Don’t get mad or get even. Get empowered. Use these ideas as tools to help select and evaluate legal counsel that advance—not frustrate—a device firm’s legitimate goals to survive and win a product liability case.