February 21, 2019

Practice Tip #7: Brace for New Circumstances Driving Changed Claim Strategy

Defending drug and device cases is challenging because of the dynamic environment in which such claims evolve.  To paraphrase a popular bumper sticker, “Stuff happens!”

Stuff Happens

So, buckle your seatbelts for changed circumstances that may and should alter your best laid plans and strategy.  For example …

The policyholder has a change of heart gets “cold feet” about defending the case after you have spent many thousands of dollars in the effort. Surprise!

*  Your insured saved money by buying the minimum liability limits and – on a large damages case – – changes its mind at the 11th hour and tries to set you up for bad faith with a “hammer letter.”  Surprise!

*  The excess carrier you haven’t heard from in years suddenly surfaces, pops out of the woodwork seizes a high profile and demands that you disgorge your full policy in case you doubt value as that high. Surprise!

*  Your well-crafted strategy in the case craters when bad documents surface during your policyholder’s production. Or, maybe your insured recalls the product during the pendency of the claim or has a scathing TV exposé on “20/20.”  Surprise!

Welcome to the world of life science product liability claims.

In handling drug and device product liability cases, you must be flexible and not be shocked by the vicissitudes of change that can blow you off of your original course. The not due to any fault or flaw in the claims handler, but simply comes with the turf and territory. Of course, all claims evolve in dynamic, ever-changing environments, but there is a difference in degree and some of the highest degrees seem to be in the life science arena.

So … what are the operational implications of these realities?  What does this mean in terms of how the claims-handler deals with upper management and other important constituencies?

Stay tuned for next week’s post, where we discuss this!

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