The Time Crunch for a Product Liability Lawyer

A product liability lawyer can often find themself in a situation that resembles whipsaw. Apparently there’s a saying in the Army, hurry up and wait. That certainly reflects the life of a mass tort lawyer, a particular kind of product liability attorney. Here, we discuss the tension a product liability attorney faces when information comes out suggesting a link between a product and a disease or other injury.

The Complexities of Timing Lawsuits in Drug and Medical Device Cases

Product liability cases involving drugs and medical devices are among the most challenging legal matters to navigate. At Ketterer, Browne, and Associates, LLC, we have seen firsthand how difficult it can be to connect an injury to a specific product. This is especially true when dealing with long latency periods, incomplete data, and evolving scientific evidence.

Some cases are easier. Our Maryland product liability lawyer handled the NECC steroid injection contamination cases for example. Doctors figured out the connection between the adulterated vials and fungal meningitis within months. (A very smart doctor in TN specifically, with the CDC’s help.) Our Pennsylvania product liability lawyer worked on cancer cases like HRT where a drug caused breast cancer, after many years of use. That one was not so easy.

Some conditions take a long time to develop through continued exposure. Many times injuries from products are not obvious and it takes time for the community to make the connection. These cases demand vigilance, expertise, and decisive action to protect the rights of injured individuals. Our Massachusetts product liability lawyer is like Farmers’ Insurance – he’s seen a thing or two, just about everything from immediate causal connections to toxic exposure cases that took decades to develop. Each product liability attorney at KBA understands the complex interrelationship between the medicine and science that presents a real challenge when it comes to timing.

The Challenge of Linking Injuries to Products

One of the most significant hurdles in drug and medical device cases is establishing causation. First, some quick background, foundational information. In cases like this, we must introduce two kinds of causation evidence – general and specific. General causation proves that more likely than not, a drug, device, other product, or environmental exposure can cause an injury. Case specific causation then shows that it did cause a specific person’s injuries.

Injuries these products cause don’t often manifest immediately. There can be a latency period—the gap between exposure to a drug or device and the onset of harm—or injuries may develop gradually over time.

Moreover, multiple factors can contribute to the injury at issue, making it harder to pinpoint a single cause. Proving the connection requires access to a vast amount of data, including clinical trials, adverse event reports, and scientific studies. Unfortunately, this data is typically controlled by pharmaceutical companies, medical device manufacturers, healthcare organizations, and sometimes even government agencies. Obtaining access to it before filing a lawsuit is challenging. As plaintiffs’ product liability attorneys, we rely on various sources to identify potential cases and safety signals.

Uncovering Causation Evidence Pre-Suit

1. Product Recalls:
   Recalls are one of the clearest indications of a potential defect. Recently, we’ve discussed recalls for the Accolade Pacemaker, RMU Chest Compression Device, Impella Heart Pump, and Megadyne Electrode Pad. Some recalls present strong evidence linking the product to specific injuries, while others may only hint at a potential problem. Our Florida product liability lawyer is very involved in these and consumer recall cases like the  
2. Published Studies:
   Trends and connections are often revealed through medical literature and studies. Doctors and researchers may publish findings or present them at conferences, highlighting statistical relationships between a product and injuries. These studies can be crucial in identifying emerging risks. Indeed, we found from studies all about the Cartiva implant, more specifically Cartiva toe implant symptoms that may gave rise to a Cartiva lawsuit and ultimately resulted in the Cartiva recall. Our North Carolina product liability lawyer handles Cartiva.
3. Consumer Reports:
   Many cases begin with individuals sharing their experiences. For example, parents who lose a child due to a baby product like the Snuggle Me Lounger or individuals injured by malfunctioning electric scooters often contact us. Our Baltimore product liability lawyer handles the e-scooter accident cases. We investigate all of these claims, collaborating with experts to evaluate their validity. Our Florida product liability lawyer is working on the snuggle me lounger and power xl air fryer recall, among others. 
4. Government or NGO Actions: Sometimes governments taken enforcement actions against companies because of product safety concerns. Some non-government organizations (“NGO”) publish safety related information that gives rise to potential product liability claims. That’s the case with Roundup and Dacthal for example. 

When these sources reveal a possible connection between a product and specific injuries, it is important to act. Some defendants will argue people who had a product injury therefore knew or should have known of the connection. As a result, they had to file a lawsuit to protect their rights.

The Statute of Limitations and the Risk of Waiting

Once it becomes public knowledge that a product may be causing harm, the clock to file a lawsuit—known as the statute of limitations—may start ticking. This is a critical aspect of personal injury law. In Maryland, for example, the statute of limitations is generally three years from the date of injury. “A cause of action for an injury described in this section accrues when the injury or damage occurs.” Md. Code, Courts & Judicial Proceedings, § 5-108(e). Other states have different rules, and some even start the clock based on constructive knowledge (i.e., when the plaintiff “should have known”; tolling due to defendants’ conduct or knowledge, etc.).

This time constraint from the statute of limitations (“SOL”) poses a dilemma for plaintiffs’ attorneys. Waiting for perfect evidence or indisputable causation may mean missing the deadline to file a claim. On the other hand, ethical obligations prevent attorneys from filing lawsuits without a reasonable basis for the claim. (Contrary to what some may suggest, frivolous lawsuits are prohibited and there are checks and balances against them.) A product liability lawyer has to balance the tension between these two competing standards.

The Imperfection of Science in Legal Cases

The scientific evidence available in these cases is rarely flawless. That gives rise to a tension between the SOL and the sufficiency of causation evidence. For instance:

• Insufficient Studies: Double-blind, long-term clinical trials may not exist for certain risks, particularly when ethical concerns prevent such studies. For example, no one would run a trial exposing pregnant individuals to a drug suspected of causing birth defects.
• Industry Pushback: Manufacturers often argue that the science is insufficient to prove causation, even as they simultaneously claim that plaintiffs should have acted sooner under the statute of limitations.

This creates an inherent tension. How can a plaintiff be expected to recognize a connection and file a claim when even experts are still debating the science?

Striking a Balance: Protecting Clients’ Rights

At Ketterer, Browne, and Associates, LLC, we understand the importance of acting swiftly and decisively in these cases, while balancing the competing issues. If you go too soon, a court may rule adversely and dismiss cases for a lack of causation evidence. If you wait too long, courts may dismiss cases with expired SOLs.

While we strive to build strong, evidence-based claims, we also recognize that waiting for absolute certainty isn’t always an option. We have seen too many instances where defendants argue both that the statute of limitations has expired and that the evidence is insufficient, effectively trapping plaintiffs in an impossible position.

Our commitment is to pursue meritorious claims while remaining mindful of the ethical and legal complexities involved. We don’t take filing lawsuits lightly, and we aim to act responsibly as advocates and community members. Thus, we evaluate the law, the facts, and the practicalities in each case.

Contact an Experienced Product Liability Lawyer Whenever a Product Use Results in an Injury

If a drug, device, or consumer product injured you or a loved one, it’s crucial to act quickly. Even if the connection to your injury isn’t yet clear, consulting with an experienced product liability attorney can help protect your rights. Contact us today to learn more about how we can assist you in navigating these challenging cases.

At Ketterer, Browne, and Associates, LLC, we are here to help individuals who have been harmed by dangerous products. Our experienced attorneys are ready to guide you through the legal process, ensuring that your voice is heard and your rights are protected.