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Recall on Exactech Joint Replacement Devices: Frequently Asked Questions (FAQ)

By Ethan Cohen

Q. What is a mass tort lawsuit?

A. A mass tort lawsuit involves a product that causes injury to many people. Also known as a “product liability” lawsuit, it is a civil action in which numerous individuals file lawsuits against one or more parties (typically a corporation).[i]

Q. What is the difference between a mass tort and a class action lawsuit?

A. A class action is a lawsuit brought by one or a few representatives of a group who have all been harmed by the same entity or entities in substantially the same way. One trial usually decides everyone’s damages and each affected person will receive an equal share of the settlement. The class representative controls the litigation and takes control of your case.

On the other hand, a mass tort case is managed in essentially the same way an ordinary product liability case would be, except that thousands of plaintiffs are bringing similar claims in the same court at the same time. Creating a mass tort lawsuit is just a way to manage a large number of similar cases while still ultimately making all major decisions based on the merits of each person’s case.

Q. Is the choice of the consolidation judge important?

A. Yes, incredibly important. Judges can be pro-plaintiff, pro-defendant, or neutral. Pro-defendant judges can make singular decisions that dismiss the entire litigation. Sometimes a judge starts off neutral or slightly biased in one direction but then reverses his or her attitude based on what comes out in the litigation or how one side comports itself. There is some strategy available to the parties in picking a judge, but ultimately the court administration chooses the judge.

Q. Will I have to go to trial?

A. Most lawsuits end up settling before trial. So, statistically, the chance that you’ll actually go to trial is quite low. Settlement is an important aspect of any lawsuit and should be considered by you using your attorney’s sound advice. But you have a right to go to trial and a right to have your case heard by a jury. You do not have to settle your case if you think that you are not being offered enough compensation for your injuries.[ii]

Q. Is there a time limit to file?

A. Yes. For medical device liability cases, the statute of limitations is three years. Meaning, if you were injured or became ill after the use of a medical device, you have three years from the date the injury was discovered to file a claim. If the statute of limitations expires, the defendant can raise the statute of limitations as an affirmative defense to get the case dismissed.[iii] Thus, it is extremely important to get in touch with an attorney as soon as possible.

Q. Do Defendants ever “do the right thing” and settle cases quickly?

A. Not in the last twenty years. There must be a lot of factors that fall into place before a defendant looks at an early settlement. Even if they are so inclined, there’s a long process of determining which suits (and unfiled cases) have merit, and how a defendant can limit future liability. Also, a quick settlement only happens when plaintiffs accept discounted values.

Q. If I reject a settlement offer, can I change my mind and accept later?

A. Maybe, but you should not count on it. Defendants often set a specific reserve amount for settlements. If a plaintiff declines the settlement offer, a defendant can bring an alternate claimant into the settlement fund who will agree to the offer. Your theoretical allotment of settlement money would then “disappear.” The defendant’s law firm works with the board of directors in decisions on how and when to fund settlements. Money earmarked for settlements may only be done on an annual basis.[iv]

Q. How can I maximize my settlement?

A. Settlements are generally based on “contemporaneous” medical records. These are records made at the time you see your doctor. Therefore, it is crucial that your medical conditions are documented in medical records. If you believe there is a new problem, or one has become chronic, it is important that this is documented. The time to do this is in advance of a settlement.

Q. Does everyone in the same mass tort get the same amount of money?

A. No. The damages that you receive at the completion of a mass tort lawsuit would be specific to your injuries suffered. While all plaintiffs may receive a similar amount of money, if you have suffered more severe damages or losses, you have a right to receive a compensation amount that reflects this. You will not know settlement values until there is an informal or formal settlement plan. No one can predict when or if a settlement will occur.

Q. How long will it take to be compensated for my injuries?

A. This is a difficult question to answer because it depends on so many factors. Sometimes a settlement can be reached quickly without having to file a lawsuit if the liability is clear and the injuries are undisputed. If a lawsuit must be brought, then settlement will typically be delayed by many years while the parties engage in discovery, trial, and appeals.

Q. Will there be legal fees if my case is pursued?

A. Our mass tort fee agreements are done on a contingency fee basis. This means that our fee is determined as a percentage of your recovery. We only receive a fee for our work if we obtain a recovery for you. If you do not receive a recovery, then you owe us nothing. If you decide to hire us to pursue your claim, all of this will be explained in a written fee agreement.

Q. How will litigation costs be paid?

A. Our firm’s retainer agreement gives you the option to advance costs, or we pay costs and deduct them from the settlement. We advance the money for all litigation costs associated with pursuing your claim (such as filing fees, medical records retrieval, and expert costs). We will receive reimbursement for these costs out of any recovery. If you do not receive a recovery, then you owe us nothing.

Q. Is preserving evidence important?

A. Yes! You should contact your surgeon and the pathology department before the removal surgery. Any medical device is your property. Only some litigations require that the device be preserved, but holding onto the defective device is always a good idea.

Q. Why should I agree to settle my case?

A. In many instances, it may be advisable to settle the case before it goes to trial. While some injury victims are reluctant to consider a settlement offer from the defendant, refusal to do so may cost you in time, effort, and frustration – not to mention the possibility of losing the case at trial and receiving nothing!

This is not to suggest that you accept an unreasonable offer, but please listen to your lawyer’s advice regarding the settlement. Your lawyer is trained and experienced in dealing with personal injury defendants. They are familiar with the defendant’s lawyer’s tactics. You should take advantage of this knowledge and consider his or her recommendation. The final decision is, however, yours to make, and your lawyer will respect your choice and work as hard as ever to see the case through to a successful conclusion.[v]

Q. How will my social media accounts affect my case?

A. Anything you publish on social media can and will be used against you in court and could even eliminate your ability to receive any form of compensation from a negligent party. So, you must be careful to not post anything that would directly conflict with potential testimony.

However, you cannot delete prior posts once a case has been filed as that would constitute destruction of evidence.[vi] Therefore, we recommend that you avoid posting on social media altogether, but if this is not possible, we recommend that you set your account to “private”. We also recommend that you do not accept friend requests from people you do not know as this may be an unethical attempt by opposing parties to access your private posts.

If you or a loved one has been impacted by one of the Exactech medical devices, please contact the New York attorneys at Rheingold, Giuffra, Ruffo, & Plotkin LLP for a free consultation today. Our experienced team has over 50 years of experience with product liability and medical malpractice cases.


[i] https://store.legal.thomsonreuters.com/law-products/Practitioner-Treatises/Litigating-Mass-Tort-Cases-AAJ-Press/p/100003626

[ii] https://khn.org/news/hidden-fda-database-medical-device-injuries-malfunctions/?utm_source=Global+Health+NOW+Main+List&utm_campaign=7a12c04a14-EMAIL_CAMPAIGN_2019_03_07_01_20&utm_medium=email&utm_term=0_8d0d062dbd-7a12c04a14-2890801

[iii] https://www.hg.org/legal-articles/statute-of-limitations-for-defective-medicines-38148

[iv] https://centerjd.org/content/fact-sheet-caps-compensatory-damages-state-law-summary

[v] https://journalofethics.ama-assn.org/article/how-fda-failures-contributed-opioid-crisis/2020-08

[vi] https://www.americanbar.org/groups/business_law/resources/business-law-today/2014-january/discovery-and-preservation-of-social-media-evidence/

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