If anyone had spoken to me about filing a tort lawsuit seven years ago, I would have stared at them as if they were speaking another language. I had no idea what these were and I had never filed any lawsuit or been part of one during my lifetime, so my education has been that on thousands of other women. I learned by reading articles written by lawyers, mainly for students of law. Was it something I had any interest in. Definitely not! However, like everything in life I do not feel that ignorance is bliss and when I need to I will study and learn. If you are reading this and have wondered what it is all about, this paragraph will explain.
Products subjected to liability include all consumer goods, medical devices, commercial/personal vehicles, aircraft and consumable goods such as food and prescription drugs. As it is the duty of a product vendor or manufacturer to produce/supply a product which will not cause harm during normal use, manufacturer/vendors of unsafe products are subject to recovery for damages.
So, thousands of women sued for a medical device otherwise known as an implant to repair a pelvic organ prolapse or a bladder sling to hold up a bladder.
When I first filed, I thought by getting my surgical records and contacting a lawyer I had a case instantly. Not so. This will explain why.
Theories of Recovery: Theories of Recovery are the principals upon which a customer may seek compensation for injuries or inconveniences resulting from their use of an unsafe product. When seeking recovery, the buyer must present cause of action for tort, which may be from bodily injury, property damage, or pain and suffering resulting from the intended use of an unsafe or defective product. Three theories of legal recovery under product liability law are Recovery under Manufacturer’s Defect, Recovery under Insufficient/Unclear warnings or instructions, and Recovery under Design Defect.
Unwittingly, many of us became customers, without being told an implant was going to be used, or any explanations or warnings about said product. I also did not know that I was going to become part of a ‘mass tort lawsuit’ and had to learn as time went on. This will explain more.
Mass torts are civil actions that have many plaintiffs involved against one or several defendant corporations. The suits can be venued in state or federal courts. The term “mass” has several layers of meaning in mass torts. The first meaning refers to the participation of many plaintiffs in tort litigation. The second meaning refers to the use of mass media by plaintiffs’ lawyers to recruit even more plaintiffs to join the ongoing litigation and plaintiffs’ class. The media is used, even if indirectly, by plaintiffs’ bar to air the case preliminarily to the public (and potential jury pool).
I of course had learned about class action lawsuits from the news over many years, but did not hear much about torts. This will explain more.
How Mass Torts Differ from Other Personal Injury Lawsuits
Mass torts are different from other personal injury lawsuits and have at least three distinct characteristics that set them apart. For one thing, mass torts involve the participation of large volumes of claims that regard a sole product or device. Additionally, even though there are large numbers of plaintiffs involved in mass torts, the underlying facts and issues in dispute are similar, if not uniform, across all of the many cases. Finally, different claims in mass torts have an interdependence in value.
It was not long in early 2010 that I was about to embark on a serious education about lawsuits and how much it would involve, including length of time it would take to receive any compensation.
Not every lawyer will take these cases and this explains why.
Mass torts are not for every personal injury or tort lawyer to prosecute. The practice mandates a huge amount of financial capital because the upfront and ongoing costs are so great for the litigation for the years until there is a settlement or award, from expert witness fees, travel expenses, and copying costs, to technology expenses and discovery costs in large-scale and high-volume litigation. The costs of everyday civil litigation today are high and escalating, but mass torts involve such a massive scale that the high figures are multiplied several times. Lawyers must front these fees during the pendency of the suit in almost all cases, unless a specific contractual arrangement is made to the contrary. Mass torts also require a huge support staff of legal assistants, paralegals, and junior associates to handle and manage the case and the huge volume of paper or files that are generated and must be retained in an organized fashion throughout the litigation, so that it is easily accessible.
The reason I am writing this blog is to help new women who find themselves having health issues after a surgery which involved an implant or who many years after the implant was put into their body, is having erosion, leg pain, immune issues or much more because of the implant.
First the most important thing I learned recently, is that at least one of the largest tort law firms in the U.S will NOT take your case if your implant was put in your body after December 2015. How do I know this? I asked a lawyer!
So, what does this mean. Well, if one tort law firm says they are not going to take any more cases after that date, it probably means they will all follow suit, so you must TRY to find a lawyer and if you are turned down ask why?
Why is there a stopping time? Because when these lawyers negotiated for their clients who had already signed up to sue a manufacturer, they had an obligated to their clients to see that they are compensated, according to the evidence they provided that they were injured by their medical device. That meant that the woman has the burden of proof, not the lawyer.
Burden of proof. I had seen comments made on support groups by women who stated angrily. “The lawyers got all the money, and I got nothing”. That can only happen if you signed up when you saw the TV ads that went on for several months in 2011 and 2012 and you never proved that you had a serious issue with the implant. I have written about these TV ads before, and you can find the blog about Akin Mears if you look under legal information.
The burden of proof is on YOU.
Chiefly Law. the obligation to offer evidence that the court or jury could reasonably believe, in support of a contention, failing which the case will be lost. OR
The obligation to establish a contention as fact by evoking evidence of its probable truth.
So, if you did not prove your case by showing that the implant was doing you harm, you cannot spread your anger and blame others.
There must be a time constraint on these lawsuits because it makes sense that out of a negotiated settlement amount, there would not be enough money for the next twenty years for new women who find themselves with complications from these implants. NEW, meaning their symptoms did not begin until long after these settlements began.
So, if your implant was after December 2015, you may be feeling screwed and you wonder if there is anything you can do. The only thing I can suggest to any woman in this predicament is to first get your hospital records and learn exactly what was put into your body and research what the product is and learn all about the manufacturer that made it. Second, file with the FDA that you are having serious complications and do so under medical devices, either on line of by phone. Finding that information is easy in Google.
The reason I say this is because this is the ONLY way another round of lawsuits MAY happen in the future, but it will only happen if women file with the FDA. Is there any guarantee it will come around again? No nothing in life has a guarantee. But if you do nothing, it will never happen for sure.
I will explain why I am saying this. When I was implanted in March of 2010 I had no clue that there had already been a round of lawsuits in the U.S and they were settled in 2008. I learned this years later. So, when I tried to find a lawyer, I had one heck of a time getting anyone to listen to me, but had no clue why. Now I understand the reasons, but it was so frustrating and disconcerting. However, I never gave up! I kept trying.
How can you know if the FDA pots out another warning? You can sign up to receive emails from the FDA with all warnings about drugs, medical devices and food. Just Google it and do it.
What does all this mean if you are a woman who was implanted many years ago and have had complications over the latter year or two? Because many of the companies who make these implants have already finished settling with women who were injured by them, it may mean you won’t be able to find a lawyer to take your case. But it does not mean it is impossible. Not every company has finished settling and you may be just in the nick of time IF you have proved your case, by having the mesh removed already. If not, you may also find yourself out of luck.
Much of what I am writing is conjecture based on the knowledge I learned by asking questions, or what I read, mainly on law sites or for law students. But it does not mean I am totally accurate in all avenues. YOU still must do the work yourself to find out if you can join a lawsuit now or in the future.
By writing this blog I am trying to give new women a heads up so that when they don’t get complete answers when contacting lawyers or do not receive any answers back when they write, they will strive to continue to find a lawyer and learn all they can, so that they can be compensated in the future.
Faith, diligence and fortitude is the name of the game when it comes to finding a lawyer. However, proving your case will be the most important thing you can do, next to getting the mesh removed from your body. If you want to live longer, then find a way to get it removed and prove your case.
This blog will explain more about proving your case. http://www.meshangels.com/build-your-case/