January 20, 2019

Practice Tips for Drug & Device Defense: Seek Collaboration Over Confrontation

Mother said, “Don’t do drugs,” but that advice was lost on me.

The truth is, I did drugs.

Practice Tips

I also did medical devices … for product liability claims for about a 25-year stretch.

Drawing on those years, I will join other panelists on a CLM webinar at noon (EST), Wednesday, July 10th on, “Extreme Claim Makeover: Building Successful Defense of Pharmaceutical and Medical Device Cases.”

Please visit CLM’s website (www.theclm.org) to register. Join us then for this FREE one-hour webinar, packed with practice tips for attorneys and claims people and to hear commentary on a recent Supreme Court decision that rocked the world of generic product liability.

One thing I like about these webinars is that it forces me to crystallize my own thoughts on an area of product liability that I’ve worked in for a quarter-century.

So with that backdrop, the Claims Coach begins a multipart series, starting this week, with practice tips for claims people who handle product liability claims involving medical devices and pharmaceutical products. The lessons and tips may apply to other realms of product liability claims handling as well, but that has been my specialty for the bulk my career.

Let’s begin with tip number one, seek collaboration on choice of counsel issues.

It’s common in this area of claims for policyholders to have strong opinions on who they want to defend them in a product liability suit. Moreover, the lawyers they have in mind may not be on our “typical” panel of approved defense counsel. In fact, they may be much higher price tag, at eye-popping billing rates of $300, $400 or even $600 an hour. They may rarely do insurance defense work.

1. Consider the insured’s reputational risk. Corporate reputations as well as well as market share are at stake here.

2. Set the ground rules up-front. Make sure that when the insurance coverage is placed, there’s a clear understanding about who selects defense counsel. Hammer this issue out at the front and of the insurance relationship.

3. If you can’t address this when coverage is placed, address it BEFORE lawsuits arrive. Do not leave it for a contentious dispute to address when everyone is under stress and the clock is ticking for filing an Answer on a recent lawsuit.

4. Seek areas of compromise on hourly rates and counsel selection.

5. Beware of “winning” the counsel selection battle but losing the war.
Win your choice of counsel but lose the account, which is ticked off at being denied its use of preferred attorneys. You can “win” the issue and later face a bad-faith claim down the road from the policyholder who maintains that its success was compromised or botched because of a penny-pinching insurer which shoved its counsel choice down the throat of a reluctant policyholder.

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