The National Law Forum

5 Tips for Personal Injury Attorneys Opening a Mass Tort Practice

Attorneys nationwide are joining the trend to add mass tort claims to their personal injury practice. Based on conservative estimates, two to four million people per year are seriously or fatally injured in mass tort cases.

Most mass tort cases are product liability cases against pharmaceutical and medical device companies. Other types involve airplane crashes, train wrecks, hotel fires, asbestos, patent, antitrust price fixing, data security breaches, securities fraud and employment claims.

It is the only practice in which economies of scale exist. These cases are national and involve filing same primary claim over and over for multiple plaintiffs. The math is compelling: in the right situation it can cost $1,500 to acquire a client with a case that will settle for $300,000, according to John Ray, senior consultant for Mass Tort Nexus and a former pharmaceutical executive.

“It is a multi-billion dollar immature market, with economies of scale and only a single barrier to entry. You have already overcome the barrier, if you hold a bar card,” Ray said.

The best strategy is to find a mass torts case with strong liability, many plaintiffs, a financially viable defendant, high settlement values and a reasonable cost to acquire a client. Here are five tips:

Timing.

There are several optimal moments to seek mass tort clients:

In the emerging phase, when many attorneys are advertising about a particular mass tort. Most patients do not connect their prescription with an adverse event. The highest consumer awareness exists when advertising is at its peak. Currently this includes IVC Filters, Bair Hugger blankets, Invokana, Xarelto, Pradaxa, Transvaginal Mesh, Morcellator, talcum powder, Zofran and Metal-on-metal hips, according to Steve Nober, CEO of the Consumer Attorney Marketing Group.
MDL phase. When the federal courts create a multi-district litigation docket (MDL) for the mass tort. There are 300 federal MDLs, which organize hundreds of cases and promote settlements with trials of bellwether cases. Courts will create a form complaint and plaintiff’s fact sheet, which can be found on Mass Tort Nexus. The MDL plaintiffs committee works on all the scheduling, motions and trials.
In the settlement phase, when the defendant announces to its stockholders that it has set aside a settlement fund. At this point, attorneys are signing clients to settle their cases.

Marketing.

The goal of any form or marketing must be to educate clients about the side effects of the product they used. Lawyers should use clear, concise language that the general public will understand. Your marketing should be about the client — not about the firm. Don’t’ forget to state that clients do not pay legal fees unless you win the case.

Marketing tactics that work include:

Pay for Performance Advertising. The attorney pays for a call and is not buying leads. The charge depends on how long the phone call lasts.
Strong Organic Web Presence. More people are filling out forms on lawyer websites, and the firm should have trained intake personnel to contact the person within minutes.
Standard Television Advertising. Bear in mind that a consumer will watch an ad 12 times before acting, according to Ray. TV ads will create the lexicon that people use to search for lawyers online. Smart lawyers will incorporate the exact wording of TV ads into their website.
Buying Leads (Caveat Emptor). Ray advises to be suspicious about lead generation companies, because there are many disreputable companies that will sell a single lead to five or six different law firms.

Partnering with a law firm.

Many of the leading mass tort law firms will accept referrals in a co-counsel agreement. In this arrangement, a lawyer agrees to accept a fraction of the recovery in exchange for the other firm prosecuting the case.

A better approach is to create a co-counsel consortium, akin to entering a partnership where two firms agree to represent a client. It can be argued that no referral occurred and the word “referral” never appears in the agreement. Both firms are equally responsible and the originating attorney can claim a larger percentage. The client is getting more lawyers on his team — a dream team — but is not paying any additional legal fee.

Beware of common legal risks in drug or medical device cases.

The Mensing Factor. The Supreme Court decided Pliva, Inc. v. Mensing in 2011, holding that failure-to-warn claims brought against manufacturers of generic medications under state law are pre-empted by federal law.
PMA Preemption Potential. Makers of Class III Medical Devices that undertake the FDA’s stringent premarket approval process can be exempt from certain product liability claims. See Riegel v. Medtronic, decided by the US Supreme Court, 128 S.Ct. 999 (2008).
Statute of Repose Issues.

Evaluating your firm.

Evaluating the resources of your firm is good place to start, before delving into other considerations necessary to develop your firm’s road map to mass tort success. See which Navy ship matches your firm.

Is your firm a super carrier?

A Super Carrier is a well-established firm with a large number of lawyers and support staff and extensive in-house logistical capabilities. It has the financial reserves needed to take on all necessary tasks of mass tort litigation, without the need for outside funding or outsourcing of services.

Is your firm a destroyer?

A Destroyer is a well-armed firm loaded with weapons (human resources and an abundance of cash.) These firms move fast to develop and deploy an attack plan, for any given mass tort case. A Destroyer may still need to seek outside funding or outsource certain services, if it wishes to take on a large number of clients in a mass tort case.

Is your firm a patrol ship?

Being a Patrol Ship has more to do with strategy than any other factor. Some firms take a conservative approach to mass torts. They stay on constant patrol and only make a move when a mass tort case arises and reaches a point that allows taking clients for the case, within the risk tolerance limits of the firm.

Are you one guy in a row boat?

If you are a sole practitioner, with little to no staff and want to enter the mass tort space, you can, but your approach has to be realistic and you must have a relevant starting point.
Many sole practitioners sit on the sidelines, believing that they are not ready for the leap into mass torts. Others jump in and reap the benefits of participation.
If your practice has a docket of general PI cases or other assets, in most situations, you can obtain the funding to make the leap. The proceeds from your limited entry into mass torts can be used to finance future expansion of both your PI practice and additional mass tort cases.

Article By Stephen Fairley of The Rainmaker Institute

Bipartisan Budget Act of 2015 – Potential Impact on Hospitals

House Republican leaders introduced legislation on Monday, finalizing a two-year budget agreement between Congressional leaders and the White House. This legislation is currently being considered and may be up for a vote as early as Wednesday on the bipartisan budget deal.

Hospitals should note the language in Section 603 (which is on pages 35-39 of the draft bill) codifies the definition of a “provider-based off-campus hospital outpatient department” (PBD HOPD) as a location that is not on the main campus of a hospital and is located more 250 yards from the main campus. The section defines a “new” PBD HOPD as an entity that executes a CMS provider agreement after the date of enactment of the Act and that any NEW PBD HOPD executing a provider agreement after the date of enactment would not be eligible for reimbursements from CMS’ Outpatient Prospective Payment System (PPS).

Bipartisan Budget Act of 2015

Section-by-Section Summary

Article By Kevin J, Ryan of Epstein Becker & Green, P.C.

Next week! Join NAWL at their General Counsel Institute – November 5-6 in NYC

The last several years have brought significant changes to the General Counsel position and for many, a rise of greater prominence within their companies. Large-scale forces are transforming the economics of corporations as they face challenges related to accelerating competition, cost controls, technology development, reporting transparency, and Wall Street’s focus on short-term profit maximization.

As a result, the General Counsel increasingly has a broader scope beyond being strictly a legal advisor to also being a C-suite executive, senior counselor to the Board, the CEO, and the CFO, and the ultimate guardian of the company’s integrity. The General Counsel and her in-house lawyers are expected to understand the full spectrum of their company’s business and provide expert legal advice, business strategy input, and ethical guidance.

At GCI 11, you will explore ways to create and promote your legal department as a key business partner, develop and employ critical business relationships, and strategically advance your expertise and skills to bolster your prominence within the company. Through powerful personal stories, substantive legal workshops, and GCI’s unique open exchange of ideas, you will soar to new heights as you develop practical solutions to stay relevant in today’s evolving corporate legal and business environments.

Join LMA New England for their annual conference – November 12-13 in Boston

Please join us for the 2015 Regional Conference, taking place on November 12 -13 at the Hyatt Regency in Boston. This year’s theme is “What’s Your WOW Factor?” Join attendees as they learn about the best tools and approaches to stand out among the competition, succeed at winning new business and become industry trendsetters. Don’t miss out on the chapter’s most important and popular event, one that saw record attendance last year!

When – November 12-13

Where – Hyatt Regency Boston

Massachusetts Appeals Court Ruling: Contractor Justified Not Paying Subcontractor That Refused To Perform Work

The general contractor on a public demolition project paid nothing to a subcontractor that had performed the majority of its work but refused to perform work that it claimed was outside of its scope of work. The subcontractor sued the general contractor and after cross-motions for summary judgment the Superior Court sided with the general contractor, holding that the work in dispute was within the subcontractor’s scope and that the subcontractor breached the subcontract by refusing to perform the work. The Superior Court also held that the subcontractor was not entitled to be paid for the work it did perform because it had not substantially performed its obligations under the subcontract. The subcontractor appealed, and the Massachusetts Appeals Court affirmed the Superior Court’s decision. Acme Abatement Contractor, Inc. v. S&R Corporation, No. 2014-P-257, 2015 Mass. App. Unpub. LEXIS 855 (Aug. 20, 2015). Click here to view the Appeals Court decision.

Contracting Background

S&R Corp. (“S&R”) was awarded a demolition contract by the Town of Weymouth (the “Town”). Part of S&R’s work included the demolition of concrete bleachers adjacent to an athletic field. S&R subcontracted the asbestos abatement work to Acme Abatement Contractor, Inc. (“Acme”). Among other things, Acme was required to remove asbestos containing paint from the bleachers prior to demolition.

Scope Dispute Arises

After Acme had commenced work, it informed S&R that it would remove paint only from the side walls of the bleachers but not the risers because Acme believed that paint did not contain asbestos and, therefore, was not within its scope. S&R directed Acme to the project specifications and identified the contract language that it believed clearly required Acme to remove the riser paint. Despite this language, Acme claimed it did not have to remove the riser paint and even went so far as to have the riser paint tested, which test results came back negative for asbestos. Even though tests performed after the subcontract was signed and work had commenced showed that the riser paint did not contain asbestos, the subcontract language included the risers within Acme’s scope and Acme “owned” that work. Nevertheless, Acme refused to remove the riser paint.

Acme performed the remainder of its obligations and then abandoned the project without removing the riser paint. S&R was forced to engage a substitute contractor to remove the riser paint because the project schedule was in jeopardy and S&R faced the prospect of being assessed liquidated damages by the Town if it did not complete the project on time. S&R did not issue payment for any of Acme’s work, even the two-thirds of the subcontract work that Acme performed, on the ground that Acme had materially breached its subcontract.

Subcontractor Sues and Contractor Wins Summary Judgment

Acme brought suit against S&R seeking $145,000 in damages for breach of contract and quantum meruit. Acme also sought treble damages and attorneys’ fees under M.G.L. c. 93A, for a total of damages in excess of $450,000. Both parties eventually moved for summary judgment. The Superior Court granted summary judgment in S&R’s favor finding that: (1) the subcontract required the removal of the riser paint; (2) the subcontract required that Acme perform the disputed work under protest and that Acme’s failure to do so was a material breach of the subcontract; (3) Acme had failed to provide required closeout documents; and, (4) Acme could not recover under quantum meruit for the work it did perform because it did not substantially complete its subcontract obligations.

Subcontractor Appeals

Acme appealed to the Massachusetts Appeals Court, which affirmed the Superior Court’s decision in S&R’s favor. Rather than address whether the removal of the riser paint was within Acme’s scope, the Appeals Court held that Acme breached the subcontract by not performing the disputed work as required by the subcontract. The relevant language provided:

Click here to continue reading…

Article By Andrew G. Wailgum & James F. Radke of Murtha Cullina

Age and Sex Differences in Working Memory after Mild Traumatic Brain Injury: Functional MR Imaging Studies

A new study published in Radiology evaluated the age effect on working memory performance and functional activation after mild traumatic brain injury. According to the abstract, researchers at Taipei Medical University-Shuang-Ho Hospital in Taiwan compared a group of thirteen individuals between the ages of 21-30 (with a mean age of 26.2 years) to a group of thirteen older patients who had an age range between 51-68 years (with a mean age of 57.8 years). Both groups had sustained mild traumatic brain injuries (MTBI). The researchers compared these twenty-six patients with twenty-six age- and sex-match control subjects. Functional MR images were obtained within one month after injury and six weeks after the initial study. Researchers performed group comparison and regression analysis among post concussion symptoms, neuropsychological testing and working memory activity in both groups.

The results showed different manifestations of post concussion symptoms at functional MR imaging between younger and older patients, which confirmed the important role of age in activation, modulation and allocation of working memory processing resources after mild traumatic brain injuries. The researchers concluded that these findings also supported the observation that younger patients have a better neural plasticity and clinical recovery than older patients.

David Yen-Ting Chen, the lead author of the study, stated in a press release, “old age has been recognized as an independent predictor of worse outcome from concussion, but most previous studies were performed on younger adults.” Dr. Chen went on to state, “taken together these findings provide evidence for differential neural plasticity across different ages, with potential prognostic and therapeutic implications. The results suggested MTBI might cause a more profound and lasting effect in older patients.”

The researchers also looked at the differences between men and women. They found that female patients with MTBI had lower digit span scores than did female control subjects, and functional MR imaging depicted sex differences in working memory functional activation; hypoactivation with non recovery of activation change at follow-up studies may suggest a worse working memory outcome in female patients with MTBI.

Again, this is just another example that refutes defense allegations that mild TBI always goes on to uneventful healing and recovery with 3-6 months. If you or your family was injured and sustained traumatic brain injuries, it is encouraged that you seek experienced legal counsel.

Article By Bruce H. Stern of Stark & Stark

Amazon Wins Ruling on Results for Searches on Brands It Doesn’t Sell

On October 21, 2015, the Ninth Circuit ruled that online retailer Amazon does not violate the Lanham Act when, in response to a search for a brand it doesn’t sell, it returns a results page that fails to disclose that fact and simply offers competing products sold under different brands. The decision in MultiTime Machine, Inc. v. Amazon.com, Inc. weakens the “initial interest confusion” doctrine in the Ninth Circuit and will likely be perceived as a significant victory for online retailers.

Plaintiff MultiTime Machine (MTM) sells an expensive military-style watch known as the “MTM Special Ops,” but doesn’t sell it through Amazon. When an Amazon customer types “mtm special ops” into the Amazon search box, the result is a list of other brands of military-style watches that Amazon sells. Meanwhile, “MTM Special Ops” remains visible within the search box and also in smaller type at the top of the page. Nothing on the page indicates that Amazon does not sell MTM products. MTM sued Amazon for trademark infringement, claiming that Amazon’s use of its trademark in this way created a likelihood of confusion.

The district court dismissed the case on summary judgment. MTM appealed. In a 2-1 decision issued July 6, 2015, the Ninth Circuit remanded the case, holding that there were issues of fact as to consumer confusion that precluded summary judgment. MTM then petitioned for a rehearing en banc.

On Wednesday, while that petition was pending, the same panel reversed itself and held in a 2-1 decision that “no rational trier of fact could find that a reasonably prudent consumer accustomed to shopping online would likely be confused by the Amazon search results.” Summary judgment in favor of Amazon was affirmed.

Judge Silverman (the dissenter in the July opinion, now writing for the majority) wrote that Amazon is doing no more that “responding to a customer’s inquiry about a brand it does not carry by … stating clearly (and showing pictures of) what brands it does carry.” In the majority’s view, this is “not unlike when someone walks into a diner, asks for a Coke, and is told ‘No Coke, Pepsi’.”

The Court held that the Ninth Circuit’s traditional eight-factor Sleekcraft test for assessing likelihood of confusion is not appropriate for this case. Sleekcraft is designed for cases analyzing similarity of the marks of competing brands. Here, said the Court, there is no issue as to the other marks involved; the only issue is Amazon’s use of MTM’s mark in displaying search results. In cases involving trademarks in the Internet search context, the more appropriate test is “(1) Who is the relevant reasonable consumer; and (2) What would he reasonably believe based on what he saw on the screen?”

Adopting the standard set forth in Toyota Motor Sales, U.S.A. Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010), the Court held that the relevant consumer here is a “reasonably prudent consumer shopping online … Unreasonable, imprudent and inexperienced web-shoppers are not relevant.” The Court also noted that the watches at issue are relatively expensive and that consumers are therefore likely to be even more vigilant than usual.

As for what is seen on the screen, the Court focused on the “clear labeling” of all of the competing products returned in the search. MTM argued that “initial interest confusion” might occur because the phrase “mtm special ops” appears three times at the top of the search results page. It also argued that Amazon should change its results page to explain to consumers that it does not offer MTM watches. The Court brushed off both contentions. “The search results page makes clear to anyone who can read English that Amazon carries only the brands that are clearly and explicitly listed on the web page.”

As a result, in the Court’s view, no jury trial is necessary because there are no material issues of disputed fact. The contents of the web page showing “clear labeling,” and the expensive price of the watches, is undisputed. The Court needs no more to conclude that “no reasonably prudent consumer accustomed to shopping online” could be deceived, even initially.

Judge Bea, who had written the majority opinion in the July decision, wrote a sharp dissent. In his view, a jury is entitled to decide whether shoppers would believe that there is a relationship between MTM and the products listed in the Amazon search results. MTM had argued that this could arise from a belief that MTM had acquired those brands, or because they are other brands from the same parent company (much as Honda and Acura automobiles come from the same company). Determining whether or not MTM is correct, said Judge Bea, is a question for a jury, not appellate judges. This is especially true in a case involving brands whose relationships to each other may not be so obvious to consumers – unlike the relationship between Coke and Pepsi.

Judge Bea claims that, by “usurping the jury function,” the majority effectively overrules the “initial interest confusion” basis for infringement. In his view, the question of whether the defendant’s labeling is clear enough to prevent customers from initially believing that the products are connected with those of plaintiff is a fact-intensive inquiry, and prior Ninth Circuit cases have not applied the doctrine as a matter of law, as the Court does here.

Apart from the technical legal issues, the two opinions reflect differing views of how the public interacts with online commerce. The majority appears to believe that online buying is now so common that consumers are conditioned to understand that entering a trademark as a search term will not necessarily return results pointing only to that brand. Its apparent desire to create a bright-line rule on “clear labeling” may make it easier for e-retailers to move to dismiss, without a trial, infringement claims from brand owners concerned about use of their marks to search for competing products. The dissent is more skeptical about consumer sophistication; its approach would create a greater burden on online retailers to defend against infringement claims.

It is unclear whether the majority intends its holding to be applied only in cases where, as here, the goods are relatively expensive and the brands are not well known. Given this uncertainty, the fact that it was a split decision, the prior petition for rehearing en banc, and the participation by multiple amici curiae, it is possible that there will be an en banc rehearing in this case. If the decision stands, however, it may diminish the doctrine of “initial interest confusion” in the Ninth Circuit and allow a freer hand to online retailers in using trademarks to generate searches for broad classes of competitive products.

Article By Andrew Baum of Foley & Lardner LLP

Another Paid Family and Medical Leave Proposal: District of Columbia Considers 16 Weeks of Paid Leave under a Local Government-Administered Mandatory Fund Using a Payroll Tax

Advocates of paid family and medical leave programs continue to press for change. In September, we reported on the Obama Executive Order that mandates paid family and medical leave for federal contractors as part of a paid sick leave requirement. Currently, both California and New Jersey have paid family and medical leave that supplements the unpaid leave benefits provided under the federal Family and Medical Leave Act (FMLA). Earlier this month, seven members of the District of Columbia’s local government Council introduced a bill (the Universal Paid Leave Act of 2015) that mandates up to 16 weeks of paid family and medical leave for all private and local public employees who spend at least 50 percent of their working time in the District of Columbia.

The District of Columbia proposal would require all employers to pay an amount equal to one percent of each employee’s annual compensation into a Family and Medical Leave Fund administered by the city. The contribution would be structured as an additional payroll tax paid by the employer, following the model of unemployment compensation. The proposal calls for the creation of a “user-friendly, online portal” on the Internet that provides information on the family and medical leave benefit and allows the submission of claims for these benefits. The resemblance to the web-based portal for Obamacare (the Patient Protection and Affordable Care Act) is probably not a coincidence.

The structure of the paid family and medical leave benefit and the levy on employers that pays for it would be progressive in the tax sense, involving a subsidy of lower income employees’ benefits by contributions for higher income employees. The wages of higher income employees are not as fully protected as the wages of lower income employees. Benefits would be paid at 100 percent of the employee’s average wage up to $1,000 per week, and 50 percent of the employee’s average wage over $1,000, up to a maximum available benefit of $3,000 per week. However, the payroll tax is a flat one percent of all compensation without an upper limit. Further, if the Family and Medical Leave Fund accumulates at least a one-year reserve against claims, the payroll tax is reduced to zero percent for incomes under $10,000 per year, .5 percent for incomes under $20,000, .6 percent for incomes under $50,000, .8 percent for incomes under $150,000 and one percent of incomes over $150,000.

Although federal government employees would not be covered by the Universal Paid Leave Act, federal agencies and federal contractors may opt-in to participate. The program would apply to all other full and part time workers in the District of Columbia.

Article By Peter R. Spanos of Barnes & Thornburg LLP

Join LMA New England for their annual conference – November 12-13 in Boston

When – November 12-13

Where – Hyatt Regency Boston

EEOC Defends “Mark of The Beast” Ruling – Religious Beliefs Don’t Have To Make Sense To Be Protected

In August 2015, the EEOC prevailed in a religious discrimination lawsuit against Consol Energy and was awarded in excess of $500,000.00. Former Consol mine worker Beverly Butcher, who had been with the company for over 35 years, refused to use Consol’s new biometric hand scanners that were installed to track employee time and attendance. He explained that he believed that scanners would leave the “mark of the beast” and would be a sign for the antichrist. Consol required Butcher to use the scanners and refused to consider alternate means of tracking Butcher’s time, and Butcher believed he had no choice other than to retire.

Consol recently moved for judgment as a matter of law or for a new trial, arguing that Butcher had admitted that he did not actually believe the scanner would give him the mark of the beast (or any mark at all), but instead believed that future versions of the device would be capable of doing so. Butcher further admitted that his pastor did not agree with him that the hand scanners had any relationship to the mark of the beast.

The EEOC has responded to Consol’s motion and stated that although Butcher admitted that the current version hand scanner left no mark, he testified that these scanners “are being used as part of a system of identification being put into place that will be used to serve the antichrist as foretold in the New Testament Book of Revelation and which creates an identifier for followers of the antichrist known as ‘The Mark of the Beast,’” and that “[t]he fact that a believer draws a line at the first step in what he sincerely believes to be an immoral process rather than the last step of that process does not alter the employer’s accommodation duty.”

The EEOC responded to Consol’s efforts to poke holes in the logic of Butcher’s beliefs, stating that it is unconstitutional for Consol to demand theological accuracy or consistency. “[A]s EEOC has previously pointed out, and as the Court instructed the jury, religious beliefs need not be seen as rational, doctrinally consistent, or accurate in order to be protected under Title VII.”

The takeaway of this is that if an employee seeks an accommodation based on religion, an employer should not subjectively evaluate the logic or wisdom of the employee’s beliefs, but instead should only consider whether the employee sincerely believes.

The case is EEOC v. Consol Energy, Inc., 1:13-cv-00215 in the United States District Court for the Northern District of West Virginia.

Article By Douglas M. Oldham of Barnes & Thornburg LLP

The National Law Forum

5 Tips for Personal Injury Attorneys Opening a Mass Tort Practice

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Bipartisan Budget Act of 2015 – Potential Impact on Hospitals

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Next week! Join NAWL at their General Counsel Institute – November 5-6 in NYC

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Join LMA New England for their annual conference – November 12-13 in Boston

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