January 20, 2019

Product Liability Claims Practice Tip #2: Hire a Specialist

As a geezer-jock playing racquetball regularly, if I have a rotator cuff shoulder problem, I’m not heading to a cardiologist. If my blood pressure is skyrocketing, I won’t book an appointment with a dermatologist.

Specialist

If you have a need, you want a specialist.

The realm of life science defense — representing manufacturers of drugs, medical devices or biotech products and the like — is no different. When an adjuster is faced with a product liability lawsuit against an insured involving a socialized product like a appetite suppressant drug or a surgical robot, this is no area for generalists.

As a result, when suit is filed against your insured and you need a defense lawyer, look for attorneys who have a pedigree and a track record of success in defending medical device and pharmaceutical manufacturers. Here are five tips:

1. Start the process long before you need to hire counsel. This should be a fundamental part of the due diligence process in selecting candidate counsel in different parts of the country, preferably long before you’re faced with making a decision to assign a lawsuit.

2. Ask for drug/device-specific references. When considering candidates or receiving proposals, ask for names of references in the drug and device realm, examples of pharmaceuticals and devices that the attorneys have defended.

3. Ask them for their track record in defense. Also, ask them to evaluate their success in case defense. What is their batting average?

4. Be aware of policyholder wariness about insurer counsel selection. One big knock on insurance companies is that their panels are often comprised of generalists, not specialists, and that insurance companies make price-driven counsel selection decisions. Put bluntly, that we hire cheap lawyers and saddle insureds with under-powered defense efforts.

5. Make a strong merit-based case for YOUR counsel. Thus, to overcome this stigma and conventional wisdom, be prepared to demonstrate to policyholders and prospects that you higher seasoned attorneys who are skilled in the specialty and that you are not engaging in a gasoline price war, throwing legal case assignments to the low bidder.

Q: What tactics have you found that have worked and served you well when hiring defense counsel for specialized product liability cases?

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