This is Susan Schaab, Certified Legal Nurse Consultant.
I asked Susan if she would talk with us today about mass tort cases.
Susan, I know you've been involved in both medical device and pharmaceutical mass torts.
And I know that there's a distinction, do you want to share a little bit about it?
And first, let's talk about what we mean by "mass torts."
Mass tort is different than class action.
Sometimes they get lumped in together, but class action is really multiple plaintiffs
in one single case.
Mass torts are individual tort cases that are then brought together because if they
were tried individually it would just overwhelm the entire system.
Right.
They are "en masse" so it's not a single medical malpractice case.
Each case stands on its own merit.
Yes, it's the kind of case a Certified Legal Nurse Consultant needs to be prepared to be
focused on hundreds, or even thousands, of cases.
Exactly.
Again, I know you've done both devices and pharmaceuticals.
And with devices, you've done vaginal mesh cases.
Tell us a little bit about how you interface with these cases on behalf of the attorneys.
I was fortunate to come in on one of the smaller companies with vaginal mesh and helped work
with the attorneys to develop the patient profile which looks at when the device, the
mesh, was implanted, who implanted it, what the issues around it were (erosion, pain,
suffering, loss of consortium) and then how the problems were addressed.
Whether there was any surgical procedure or if was just, sort of, watch and follow-up.
While every medical malpractice case, or personal injury case, is very unique, what I'm hearing
from you is that when we're involved in mass tort cases (and this is important for people
to understand) there's a template that they're working with and you call that the "patient
profile."
Yes.
There's a template.
As a consultant, you're going in and you are looking for very specific elements, occurrences
and variances and signs and symptoms.
I think that it's important that you can be involved in helping to create that template
of what they have to look for.
Well, and when you're screening the records too, it's important because each case is individual
and stands on its own merit.
Sometimes the screening of these cases can be done quickly and in a shoddy fashion so
that individuals who actually have significant damages are lost in the shuffle.
That case will settle for a much smaller amount than if the actual damages are correctly ascertained
and brought to the attorney's attention.
And then that case can either be tried individually or it will settle for a much greater amount.
Likewise, it's important for people to understand, if you are working on hundreds or thousands
of cases the attorney might not want you to spend 50 or 70 hours on a single plaintiff.
It's a different kind of interaction.
I have spent as little as half an hour on one whole medical record because the screening
is different.
If you're looking for a surgical intervention that was done to correct the vaginal mesh,
you're screening 6,000 pages in an hour looking for the operative note and knowing exactly
what to look for.
It is short time frame specific.
It's almost more like data mining in some of the cases.
And that's why that patient profile template is so important, because you really do know
exactly what you have to get in there and get focused on.
And that's what you want to market to the attorney.
I know you've also worked on some pharmaceutical mass torts.
Yes.
How is that different?
That requires a lot more analysis.
The pharmaceutical case that I worked, I was on the defense side, which was a lot of fun
because the injuries are related usually to the black box warning.
But we all know that medications work together and have adverse effects depending on what
the patient is taking, all their other medications and what their medical background is.
Those pharmaceutical cases actually, on the defense side, you can knock a bunch of them
out just by providing very detailed, extensive reports.
When you say "knock them out" you mean get the plaintiff to drop the case, right?
Yes!
(laughing)
Okay, I just wanted to make sure people listening know what you mean by that.
Alright, give us maybe a tip or two, when working on mass tort cases that you think
over the years, in your own involvement in mass torts cases, that you've kind of learned
that are important for anybody who's going to get involved in these.
You need to understand where and what phase the case is in.
If you're getting involved in very cutting-edge litigation that's coming up, like the CLNC®
consultant I talked to who is interested in issues coming up with perfusion equipment.
Yes.
That is just starting.
She knew more about it than I did because she had been getting the information from
work, and then she was going to seek out attorneys involved in that.
That's a very early phase.
Then there's the phase where you can come on while they're trying what they call the
"bellwether cases" which is putting forward example cases to see what the verdicts can
be.
The plaintiff usually loses those first few cases.
And then they start winning.
And then they start winning big.
Once they start winning big, that's when it goes more into the "mature" phase where it's
just a scramble to find as many of these injured clients as you possibly can.
The emergent phase would be extremely interesting because if you can bring to the attention
of these attorneys that this is an issue that you've noticed based on FDA data and some
other information, they can get a big jump on it.
You can, at the beginning, help them to set the stage and really develop strategically
where they're going to go with these cases.
Right.
Whereas, if you're coming in more on the back end of it you're probably going to be working
more on behalf of what they've already defined as their objectives.
And, as you suggested to me earlier, sometimes they might be a little off-track.
So it's better if you're brought in on the early stage.
On the early stage it's wonderful because you don't need to locate an expert because
there is only one expert who is addressing causation issues in these cases.
So that person already working with the firms on both sides.
What you are doing in the earlier stages of the litigation is just really helping form
the whole analysis and legal strategy goes with that.
Absolutely.
People get excited about the thousands of cases that come in later on.
It's very quick.
You're extracting specific information that is already kind of set in stone by the motion
process and everything between defense and plaintiff and the judge.
So there's nothing truly unique that you can find, unless you find damages that actually
will move the person to a higher level on the settlement grid.
Susan, thank you so much for sharing this information on mass torts.
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