One of the liability theories in shoulder pain pump litigation is fraudulent misrepresentation. But what does it mean and why is it significant? To find out, we asked Jeff Milman, a California attorney whose practice represents injured pain pump victims. Here's what he told us:

Fraudulent misrepresentation: defined

Milman says that these are statements made by a company, either knowing it’s false, which is fraudulent, or without having a reasonable basis to believe it’s true, which is negligent, with the intent of getting someone to rely on these statements and, in fact, somebody does rely on them and they’re hurt. He explained why is significant:

So, in this particular case, this litigation, the marketing practices of these various companies are directly at issue. When the manufacturers, as we claim, encourage physicians to place the pain pumps and catheters directly into the joint space and tell them it’s safe without the ability to back that up either through testing and, in fact, concealing what some of the literature was starting to show, that can be fraudulent or negligent misrepresentation.

Each state's laws are different on this theory and are interpreted differently by courts. So, the law in California may be significantly better or worse than the law in a different state. When you’re looking at these cases as an attorney, one of the things that factors in is which state will I get a better jury pool and, most importantly, good law.

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Seeking the right venue

Since each state's laws are different and can help, or hurt, a plaintiff, we asked Milman the following question – If a pain pump patient lives in Maine, had surgery in Nebraska and used a pain pump made by I-Flow which is headquartered in California, where could they file a lawsuit? Here is his answer:

If the treatment was in Nebraska, they could bring a claim in Nebraska in the state or federal court. To remain in state court, you have to demonstrate that one of the defendants is a Nebraska defendant or else you’re subject to removal. In addition, you have the ability to bring the case in the hometown of the manufacturer. If the manufacturer is I-Flow, it is in Newport Beach, California, so you could bring the action in Orange County, California.

You could also possibly bring the case in the state where you eventually discovered it. For example, if you had your surgery, then moved to another state and now have a whole bunch of treatment in that state because it’s figured out you now have this debilitating illness, you could bring it in that state or, as I said, in the hometown of the defendant.

That being said, Milman also told us that any of these venues are subject to fights. He explained, “On at least one occasion, I know that some of the defendants have been successful in taking a case that was filed in California and sending it back to the state where the treatment occurred claiming that it was forum non conveniens, which is a fancy way of saying that all the witnesses, the doctors, the treatment, everything happened in another state. So there are fights about this legally.”

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