"Smart people are doing as much of this work in advance as possible," Garretson said.
Unraveling liens is a complicated affair. It's not uncommon for products liability claimants to already be sick and to have pre-existing injuries before they used a medical device or they ingested a drug, Garretson said, and they often have had multiple insurers, sometimes starting with private insurance when they first got injured and then they might have gotten turned onto Medicare, Medicaid or Medicare Advantage/Part C programs in which people have their Medicare benefits provided through private health insurance plans.
Garretson said his firm has Web portals and online systems that government employees can use to get the information about claimants in order to make decisions about liens, Garretson said.
The New Frontier: Private Liens
The latest issue regarding liens has been the assertion of liens by private insurers, especially those who provide Medicare benefits.
That was the kind of lien that was potentially at play in McCoy's case.
Gerald Lawrence, an attorney with Lowey Dannenberg Cohen & Hart, who is representing health benefit plans that are alleging reimbursement claims in litigations such as Avandia, said private lien resolution programs are "a model that's attractive to defendants because the defendants in these cases have a responsibility to ensure these liens are paid. Defendants have begun to focus on their liabilities for these claims, as have claimants and their counsel. The LRP model provides an efficient method for resolution of liens."
Usually, a period of time will be provided in a mass tort claims administration program for private insurers to substantiate their liens, but after that period has expired, the claims can be paid, Brown said.
Weinkowitz, who was one of the lead plaintiff negotiators of the private lien resolution program in the Yaz/Yasmin/Ocella birth control litigation, said such programs are becoming more typical.
"Generally, both sides, plaintiffs and defendants, see the benefits of such programs. It provides plaintiffs who voluntarily participate with certainty they receive a substantial reduction of his or her lien and it provides a defendant certainty that liens are resolved," Weinkowitz said.
Private liens are a "complicated minefield" because plaintiffs lawyers must remain mindful of clients' contractual obligations to their insurers even if they are from states with anti-subrogation laws or states that prohibit health plans from seeking reimbursement on the basis of equitable rights, Weinkowitz said.