Damages

In cases where patients are injured as a result of a defective medical device, such as a faulty knee replacement or a dangerous hip implant, one of the most important aspects to evaluate is the type and amount of damages suffered.

It’s key because even if a manufacturer’s actions were egregious, someone with minor injuries and minimal losses may not be wise to pursue what could morph into a drawn-out legal action. However, understand that product liability lawsuits on the whole result in some of the highest settlements and damage awards of any other kind of tort.

At Jeffrey Glassman Injury Lawyers, we are acutely familiar with the kind of losses and pain suffered by those affected, and we can help potential claimants understand how those are translated into damages. We work every angle of a case with the goal of securing fair compensation for victims and their loved ones.

Most often, this includes compensation for:

• Medical bills
• Pain and suffering
• Lost wages
• Mental and emotional anguish
• Future therapies, treatments and medications
• Diminished quality of life
• Loss of consortium

Because a defective hip or knee replacement device can result in years of impairment, numerous corrective surgeries and significant loss of life enjoyment, the stakes are high.

In determining how much a claim is worth, it’s important to first understand the different types of damages that can be claimed.

These are:

• Compensatory/ Actual Damages. The purpose of compensatory damages is to return an injured person to the position he or she occupied prior to becoming injured by a defective product. These include things like out-of-pocket expenses, hospital, medical and nursing costs, lost income and reduced earning capacity. Mental pain and suffering are also considered a form of actual damage.
• Loss of Consortium and/or Companionship. These are damages suffered by an injured person’s spouse as a result of the product defect. Often, the closeness of partners and strength of the marriage comes into play. In some cases, children of an injured person may file such a claim as well.
• Punitive Damages. These are damages intended to punish a person for causing injury or loss in situations where defendant’s actions were willful, wanton or reckless. The Massachusetts Supreme Judicial Court has ruled in the 2015 case of Kiely v. Teradyne there can be no punitive damages absent compensatory damages.

Massachusetts follows a traditional collateral source rule. That is, defendants are not allowed to produce evidence showing plaintiff received other compensation for his or her injury.

So for example, if plaintiff is collecting workers’ compensation insurance to cushion the loss of wages or health insurance that eases medical costs, that doesn’t lessen defendant’s liability. In fact, per the American Bar Association, the whole point of the rule is to prevent jurors from finding plaintiff’s claims are not as important or reduce a damage award in order to prevent double recovery.

There are a few exceptions to this rule. For example, if collateral source evidence could affect plaintiff’s credibility or show some alternative cause of damages alleged, a judge may allow it.

The collateral source rule has been abolished in medical malpractice cases in Massachusetts, but it still applies in product liability claims.

Defective knee and hip replacements are the basis for a substantial number of product liability claims in the U.S. There were more than 1,200 recalls of these products between 2003 and 2013, and there are hundreds of thousands of patients who have had to undergo revision surgeries after the devices failed or became toxic.

According to Thomson Reuters, Current Trends in Personal Injury, 54th Edition, the average product liability lawsuit garnered a jury award of nearly $6.4 million. By comparison, the average medical malpractice lawsuit garnered an average of $3.5 million. Those who won premises liability actions took home $587,000 on average, while those who won their vehicle liability cases took home about $350,000.

Mind you, these are jury awards, not settlements. Many cases do end in settlements prior to trial. But these figures illustrate the fact that damages in product liability cases are significant. Defendants fight them vigorously. You need a law firm that is well-resourced, experienced and prepared.