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If a Lawsuit is Filed
Cindy Khin, CPCU, AIC, ARM  |  April 19, 2010

Question:  If a lawsuit is filed against my company, what can I expect and what can I do to assist defense counsel?



Cindy Khin, CPCU, AIC, ARMAnswer:  If a lawsuit is filed against your company you can expect that one of your company’s representatives will be contacted by an attorney assigned by Medmarc.  Your attorney will discuss the allegations against your company as well as other information important in laying the foundation for the defense of your product.  You can assist Defense Counsel by doing what you can to help them learn about your product.  An in-depth understanding of your product, its design, production process and FDA history is crucial for your attorney in order to adequately defend your case.

As your case progresses into the discovery process, you can expect that your company’s documents will be reviewed intensively.  Plaintiff attorneys typically request to review as many documents as they can in an effort to locate sound bites or reoccurring themes to make it appear that your company makes decisions based on profits rather than product safety—in other words, that it chooses profits over people.  Throughout this document review process understand that much of your company’s “dirty laundry” is likely to be aired.  That being said, Defense Counsel will object to the production of documents when possible and appropriate (e.g., privileged documents, trade secrets, etc.).

You can assist Defense Counsel in the document review process by identifying the record custodians early on.  This helps ensure that the necessary documents are retrieved in a timely manner.  You can also assist this process by ensuring that your company has a document management policy and that it is implemented.  Document retention policies outline the company’s plan for maintaining and destroying documents (both hard copy and electronic) and data.  These policies help manage the amount of information to be reviewed, which incidentally also helps manage the cost of the review.  Of course, throughout this process you should keep in mind that the destruction of documents that may be relevant to your lawsuit should immediately be suspended.  It is also important to remember that companies that have document retention policies must ensure that they are actually implemented or the jury can presume that any missing documents were adverse to the company.

You can expect that throughout the litigation process the court will not be concerned with whether dates or deadlines imposed are convenient for you or your business.  Defense Counsel is limited in what it can do when arranging deadlines, and you will be expected to meet your litigation deadlines, regardless of their convenience to you.  You can assist your Defense Counsel by identifying your in-house experts early on in the litigation process so adequate preparations can be made in the event those experts are deposed or called as a witness at trial.  This identification also helps you prepare, from a business standpoint, for the potential, temporary absence of some of your key employees.

Cynthia Khin is the Chief Claims Officer for Medmarc Insurance Group.  She provides claims administration and litigation management to over 1000 drug and medical device companies.