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Pelvic Mesh Win Doesn't Indicate Swift Global Accord
Jan 1, 2016 | The Legal Intelligencer
By Max Mitchell
Even though the first case to hit trial from Philadelphia's pelvic-mesh mass tort program resulted in a $12.5 million verdict for the 65-year-old plaintiff, products liability attorneys do not think the verdict will result in a faster global settlement of the program. In late December, the first Philadelphia jury to hear a case claiming that an allegedly... -
Lawyers' ‘Inappropriate’ Solicitation And 'Ubiquitous' Advertising Have Racked Up Cases In Pelvic Mesh MDL, Defense Memo Claimed
Dec 31, 2015 | Legal Newsline
By Amanda Robert
Plaintiffs’ lawyers in the pelvic mesh multidistrict litigation have been competing for claims because of their tremendous monetary value, according to a memorandum filed earlier this year by one of the seven defendants in the massive MDL. Ethicon, Inc., a subsidiary of Johnson & Johnson, pointed out in the memorandum...
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Pelvic Mesh Win Doesn't Indicate Swift Global Accord
Jan 1, 2016 | The Legal Intelligencer
By Max Mitchell
Even though the first case to hit trial from Philadelphia's pelvic-mesh mass tort program resulted in a $12.5 million verdict for the 65-year-old plaintiff, products liability attorneys do not think the verdict will result in a faster global settlement of the program.
In late December, the first Philadelphia jury to hear a case claiming that an allegedly unsafe transvaginal mesh device caused incontinence and pain during sex awarded plaintiff Patricia Hammons $5.5 million in compensatory damages and $7 million in punitive damages. The case, Hammons v. Ethicon, was one of about 180 cases in Philadelphia's pelvic-mesh mass tort program.
According to court watchers, although the verdict in Hammons was a big win for the plaintiff, litigation is likely to continue.
"For a sophisticated drug and medical device company, you need at least a half-dozen or a dozen, depending on the products," said Duane Morris attorney Alan Klein, who often represents generic drug companies. "If you keep getting punitive and compensatory awards, you may get there quicker. But you need six to 12 to see how it will play out."
According to Cozen O'Connor attorney James H. Heller, if Hammons was thought to be a strong case for the defense, the verdict will give the plaintiffs clear leverage at any settlement talks. But still, the defendants will likely want to see more results, and may want to wait on talking settlement until they get a more favorable result.
Products liability defense attorney Jonathan Dryer of Wilson Elser agreed, saying it's likely "not enough to make [a defendant] roll over, but [the plaintiffs] won the first game in the series."
Kline & Specter attorney Shanin Specter, who was the lead attorney in the Hammons case, said he did not know if the verdict will lead to a swift global settlement.
"Johnson & Johnson has lost most of the jury trials in the [transvaginal mesh] litigation and the awards have been substantial," he said in an emailed statement. "I know of no mass tort where the defendants have fared so poorly at trial. This is simply a result of the fact that these vaginal mesh products and the associated conduct of Johnson & Johnson are egregious and the injuries are severe."
Spokesmen for J&J did not return a message seeking comment.Variables
Although the verdict was a win for the plaintiffs and all attorneys said they were surprised by the size of the punitive damages award, in any litigation involving multiple lawsuits, the parties now have to assess whether the result was the outcome of consistent factors, or a one-off set of circumstances that this time played favorably for the plaintiffs, attorneys agreed.
Dryer noted that the case went to the jury just a few days before Christmas, and said the award may not play significantly as a benchmark in any future settlement.
"That's not a case [a defendant] would want to go to a jury at that time of year," Dryer said. "You have got to discount it to a certain degree because of the season."
Age can also be an important variable in cases where injuries are based on the loss of sexual contact, and some attorneys said the compensatory damages were somewhat surprising given Hammons' age.
"Age depends greatly," Klein said. "You have people that are very vigorous and youthful in their 50s and 60s, and she may have testified very effectively."
The amount of compensation Hammons won, especially given her age, makes the compensatory damages, rather than the punitive award, a more significant factor in the future litigation, according to Dryer.
"If I'm pushing from the plaintiffs' standpoint, I'm certainly pushing the compensatories," Dryer said. "Think about what it could be worth with a case with younger plaintiffs."
Heller said the defense strategy of arguing that Hammons' boyfriend possibly had problems with impotency, or that her smoking led to some injuries likely backfired.
"You're really walking a precipice when you do that," Heller said. "When you have strong evidence, you need to put that forward, but if the jury believes you're doing it out of spite, or a veiled attempt to reduce liability ... the jury could get angry."
Although oftentimes defense attorneys test out every viable argument in front of juries—especially when trying bellwether cases—Heller said the defense may want to avoid blaming the plaintiff for the sexual difficulties.
"Was it the result of the facts of the case, versus the strategy?" Heller said. "If I were J&J's counsel, I'd be looking long and hard at my strategy."
Klein said mass tort programs often result in a mixed bag of verdicts, so the award is no indication of what the next juries may find. He also noted that insurance carriers also often play a major role in settling any large litigation.
"The company may want to fight every fight," he said. But, insurance companies are "the reality check."Constants
One constant in all cases is the pelvic mesh device.
Klein noted that it is both in a very sensitive area of the body, which could play into larger compensatory awards, but it is also "an important therapeutic device."
"With faith in the product, faith in the implanting physicians, they may be more willing to fight the fight than fold the tent," Klein said.
According to Heller, the strongest defenses may be contesting the link between the device and the injuries, and contesting the severity of those injuries. However, he said the argument that J&J failed to adequately consider how to remove the device if it failed will also likely dog the company throughout the litigation.
Another constant that may play heavily in global settlement talks is the pelvic mesh litigation occurring across the country.
In May, a Delaware jury awarded $100 million to a woman who experienced complications from a transvaginal mesh implant that Boston Scientific Corp. made.
There is also an active multidistrict litigation in the Southern District of West Virginia focused on pelvic mesh, and a Texas jury also awarded $1.2 million against J&J in a pelvic mesh case last year, although that verdict was recently tossed.
"I think both the plaintiffs and defendants in the case will be looking at the entire playing field," Klein said.
Of the more than 180 cases pending in pelvic-mesh mass tort, two are scheduled to hit trial in January and at least one is set to hit trial in February, according to court records.
Although attorneys did not say the verdict will lead to significant growth of the mass tort, attorneys agreed that attorneys and potential plaintiffs are likely taking note of the Hammons verdict.
"It isn't going to discourage it," Dryer said. The punitive award, in particular, is "reinforcing the image that Philly is a good place to present them."
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Dec 31, 2015 | Legal Newsline
By Amanda Robert
Plaintiffs’ lawyers in the pelvic mesh multidistrict litigation have been competing for claims because of their tremendous monetary value, according to a memorandum filed earlier this year by one of the seven defendants in the massive MDL.
Ethicon, Inc., a subsidiary of Johnson & Johnson, pointed out in the memorandum that pelvic mesh litigation has grown aggressively because of the “inappropriate, indeed illegal, solicitation of women by unscrupulous groups and individuals, compounded by ubiquitous attorney advertising.”
In the last five years, more than 80,000 women have become involved in the pelvic mesh MDL, claiming that transvaginal mesh products that were intended to treat their stress urinary incontinence and pelvic organ prolapse were defective and caused severe medical problems.
Johnson & Johnson and Ethicon’s memorandum, which has since been withdrawn since its filing on Jan. 14, states that they were contacted by numerous women who were upset after receiving unsolicited phone calls from individuals who asked for – or already knew – their private medical information. These individuals also encouraged the women to file a lawsuit, whether or not they had an injury related to a transvaginal mesh product.
The memorandum adds that these women were led to believe that Johnson & Johnson distributed their medical information.
“What is happening here is wrong,” according to Johnson & Johnson and Ethicon. “And the fallout includes a compromised judicial system, exploitation of women and their federally (HIPPA) protected private health information, and undermined doctor-patient relationships. Further, the influx of potentially baseless claims hampers Johnson & Johnson’s and Ethicon’s ability to accurately assess the true number and value of these cases.”
Johnson & Johnson and Ethicon contend in the memorandum that the effectiveness of the solicitation is likely enhanced by attorney advertising, which they estimate at $45 million in just television advertising in 10 months of 2014.
“Solicitation of plaintiffs in pharmaceutical litigation has ‘spawned a now well understood business model that rewards attorneys who can recruit the most claimants in the most limited period of time,’” according to the memorandum.
The companies say in their memorandum that once third parties provide plaintiffs’ lawyers with access to large groups of potential clients, the lawyers can then use those clients to push for settlements with corporate defendants.
However, while Johnson & Johnson and Ethicon point out that they do not suggest that specific plaintiffs’ counsel in the pelvic mesh MDL are knowingly participating in the solicitation scheme, those counsel are obligated under federal rules to inquire into whether evidence supports their clients’ claims before filing their lawsuits.
Johnson & Johnson and Ethicon also say they do not question the right of plaintiffs’ lawyers to advertise for potential clients, but “in an environment such as this one, potentially ridden with fraud, the effect of blanketing the airwaves with calls to litigate cannot be viewed in a vacuum.”
Another concern that has arisen out of the pelvic mesh MDL is that plaintiffs’ lawyers use litigation funding to attract and advance large numbers of cases.
Nearly 15,000 pelvic mesh claims were bought and sold by trial lawyers in Texas, as alleged in a lawsuit filed against Houston law firm AkinMears on Sept. 29 in Harris County District Court. According to the lawsuit, AkinMears struck a deal with a litigation funder to finance the purchase.
Amir Shenaq, the former business development director of the firm, who brought the lawsuit, alleged that the firm initially spent significant amounts of money on thousands of television advertisements to rack up clients’ cases. However, he said in the lawsuit, the firm decided to instead buy claims that had been accumulated by other trial lawyers, with a goal of closing on $100 million worth of cases in 2015.
Michael Fishbein — an attorney with Levin, Fishbein, Sedran & Berman in Philadelphia, who served as lead plaintiffs’ counsel in the Diet Drug Products Liability MDL – explains that counsel in an MDL or class action need to exercise independent professional judgment or they destroy their ability to provide fair and adequate representation to their clients.
“The biggest thing about litigation funding is to the extent it would in any way affect your independent judgment, you have to avoid it like poison,” Fishbein said.
“Your leadership actions are going to affect a lot of people beyond your clients — they will affect other people’s clients,” he added.“Courts put a lot of trust in the people they appoint as lead counsel, and I think they have this implicit expectation that they’re going to call the shots based upon the exercise of their independent professional judgment and not because they’re catering to a funder.”
Fishbein explains that litigation funding agreements often include specific provisions that penalize plaintiffs’ lawyers for passing up a settlement. That could force a plaintiffs lawyer to settle a case, even if their independent judgment would instead lead them to trial.
He also points out that in a class action, every class counsel’s fee should represent a percentage of the recovery so their interests are aligned with the interests of class members.
“If you’re worrying about whether or not the fee that you get will be big enough to cover whatever you promised the litigation funder and yourself, it could precipitate a misalignment with the class,” he said. “That is a bad thing.”
Victoria Shannon Sahani, an assistant professor of law at Washington and Lee University School of Law, explains that litigation funders would rather fund the plaintiffs’ attorneys in a class action because of restrictions on the class.
In these cases, she says, the judge controls everything, from the appointment of the class counsel to the approval of the attorney’s fees.
“Because judges have so much control, they won’t allow the attorney’s fees to go above a certain amount of the class winnings, “Sahani said. “There is no room for the funders to negotiate. Instead, they go to the law firm, so they can negotiate with the law firm.”
Sahani also contends that litigation funding has pushed law firms to group together in significant class actions and MDLs, such as those involving pelvic mesh, tobacco and asbestos.
“There is a business incentive for the law firms to join together,” she said. “These things are expensive. There are millions of plaintiffs. You’re going up against a giant corporation.
“Enter the funder.”
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