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Potential lawsuit? Save everything.

  • July 23, 2018
  • KBA Attorneys
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If you suspect you’re going to sue someone, save everything related to the lawsuit. Medical records, bills, emails, Facebook posts, pictures, etc.; anything that has to do with your injuries, the product or incident at issue, witnesses involved.

One reason is because you may have a legal obligation to preserve evidence and to prevent its destruction, and if you don’t, you could face sanctions, which means, having to pay money to the other side, or you could lose your case. See, e.g., Marquis v. Biomet, Inc., 2017 U.S. Dist. LEXIS 28465 (N.D. Ind. Mar. 1, 2017); Creazzo v. Medtronic, Inc., 2006 PA Super 152, 903 A.2d 24, 29 (2006); Bowman v. Amer. Med. Sys.,1998 U.S. Dist.LEXIS 16082 (E.D. Pa. Oct. 9, 1998); Cooper v. United Vaccines, Inc. 117 F. Supp. 864, 874 (E.D. WI. 2000); Fleury v. Biomet, 865 So.2d 537 (Fla. Dist. Ct. App. 2d Dist. 2003); Huskey v. Ethicon, Inc., 2014 U.S. Dist. 107887 (S.D. W. Va. Aug. 6, 2014).

Let’s consider medical devices for example. A patient has surgery. That patient’s doctor implants a medical device, say hernia mesh, artificial hip, or elbow replacement. A problem arises after the surgery. The doctor goes back in and removes the product. If the doctor tells the patient it was because the product failed, was defective, caused the injury, etc., significant duties may be a trigger. First, the clock may start running with respect to how long the patient has to file a lawsuit, and in some states, it can be as short as a year. It is three years in Maryland. These laws are called statutes of limitations.

A second important obligation that may arise is the duty to preserve evidence. That includes medical records, pathology reports (like tissue or product samples), and the product itself. This includes the hernia mesh they took out during the removal surgery, or the artificial hip, or elbow replacement. When such a surgery is scheduled, the patient should inform the doctor and/or facility to preserve the product and all related things (records, reports, samples, etc.). There are companies that will do it for you, at a cost of course. These are among the many things law firms handle for you when investigating a case, and they are made aware of the surgery before it happens.

Preservation protocols

After lawsuits have been filed, courts sometimes enter preservation protocols. Essentially, the Court enters an order that dictates what has to be preserved and how.

Case Management Order 9 in the BHR hip litigation provides a recent example. In that MDL, the Court recently ordered Plaintiffs to preserve any explanted hip system. (Or. at 3.) Additionally, tissues, fluids, whole blood, and/or serum samples should be saved too. (Id.) The Order dictates how to identify explanted systems and how to ship and track them. (Id. at 5-10.) Failing to comply puts Plaintiffs at risk of having to pay money or lose their case. Thus, you need to pay attention to court case management orders and comply with them in good faith.

If you have any questions on your potential case, contact us today.