Preview Newsletter
Ethicon Media Monitoring 5/2/2019
-
Mother who spent £13K to remove a vaginal mesh implant that made sex with her husband impossible accuses the NHS of STILL failing women 'mutilated' by the surgery
May 1, 2019 | Daily Mail
By Hayley Richardson
A mother-of-three who was left in constant agony and unable to have sex with her husband by a vaginal mesh implant has spent £13,000 on having it removed. -
Devon hospital probe demanded by suffering women who received vaginal mesh surgery
May 1, 2019 | Devon Live
By Anita Merritt
A group of injured women from Devon will be hand delivering a letter today to Torbay and South Devon NHS Foundation Trust which lists the names of woman who severely suffered after being fitted with the controversial vaginal mesh implants at the hospital. -
Multidistrict Litigation Basics: A Primer for Plaintiffs
May 1, 2019 | Mesh Medical Device News Desk
By Elizabeth Chamblee Burch
In recognition of World Mesh Awareness Day, I thought I’d write a longer post about the nuts and bolts of hiring an attorney and what should you expect if your case is part of a mass tort—e.g., if there are hundreds or even thousands of people who allege injuries from the same product? -
As Lawsuits Take Flight, Boeing Facing Burgeoning Legal Bills. Plus: Lit Funders Gain Ground in NFL Concussion Deal
May 1, 2019 | Law.com
By Amanda Bronstad
...Mesh Milestone: Johnson & Johnson got hit with a $120 million pelvic mesh verdict in Philadelphia last week. -
May 1 International Mesh Awareness Day
May 1, 2019 | Mesh Medical Device News Desk
By Jane Akre
May first is the Worldwide Mesh Awareness Day, a term coined by the Mesh Awareness Movement, though recognized internationally. -
dddd
|
Client Attorney Privileged/Attorney Work Product/At Request of Counsel
Online Sources
-
May 1, 2019 | Daily Mail
By Hayley Richardson
A mother-of-three who was left in constant agony and unable to have sex with her husband by a vaginal mesh implant has spent £13,000 on having it removed.
Ceri Baker, 43, of Dartmoor, Devon, underwent the initial 45-minute operation at Torbay Hospital in March 2017 to treat stress urinary incontinence which she was plagued with after having children.
But afterwards, the formerly fit and healthy mum was left in constant pain by the trans-obturator tape (TOT), making it difficult to sit comfortably or do the physical hobbies she loved with her family.
She was also unable to have sex with her husband-of-20-years Peter, and said her vagina felt 'mutilated'.
Having gone back and forth to her GP and surgeon and undergone two steroid injections under general anaesthesia, in January she suffered a severe nerve reaction and hasn't been able to walk for more than 30 minutes or sit comfortably since.
It got so bad that Ceri, a special educational needs coordinator, was considering a hysterectomy when she eventually decided to go private and have the mesh removed, rather than face a year-long wait for the procedure on the NHS.
Ceri is now taking legal action against Torbay and South Devon NHS Foundation Trust for the suffering she has endured and the impact on her life.
She is calling on the hospital to carry out an investigation and urging the trust to gather information from all patients who have suffered since having the implant and offer them support and appropriate care to aid their 'mental and physical health and well-being'.
Ceri, who documents her experiences on her YouTube channel Vaginal Mesh Story Time, explained: 'I paid to have the mesh removed privately in order to save myself, as if I waited a year it is very likely I would have been unable to work or lead anywhere near a normal life.
'I was already struggling to do so, having to spend many days lying on the sofa working from home as I couldn't sit on a chair for more than 20 minutes comfortably.
'I will need three to six months off work now to recover and have been told it will be up to two years for full nerve and muscle recovery.'
Speaking about her reasons for having the TOT mesh, she said she was 'leaking daily' which was 'annoying and embarrassing', especially when she was out running, shopping or dancing on a night out.
She told Devon Live: 'I was so bad I stopped having fun, but it caused no pain at all and I could in fact lead a perfectly "normal" life, so long as I planned ahead.'
Having been told by her surgeon that the implant would 'change her life', she said it did just that - dramatically for the worse.
'The nerve pain was so severe that I needed to take strong nerve blocking medication to function in any normal capacity,' she said.
'I felt I had reached breaking point as I couldn't sit at my desk to work and I felt constantly exhausted, and like I was being gradually poisoned.'
Ceri claims she was never made aware of the risks by her surgeon and was shocked to see a letter two years later which claimed she had been informed of the success rate and reoperation risks, together with the risk of pelvic organ damage, chronic pain, dyspareunia (difficult or painful sexual intercourse), mesh erosion and rejection.
Since having her mesh implant removed, at a personal cost of £13,000, Ceri said she is completely exhausted and struggles to maintain good mental health.
She added: 'My main sadness as a mother is that I am losing precious time with my children again that I can never get back or ever be compensated for.'
Ceri and a number of other women who claim to have suffered seriously since having the implants at Torbay Hospital have formed The Action for Mesh Injured Patients campaign group.
Today they presented a petition to officials at the hospital to mark International Mesh Awareness Day.
Ceri explained: 'Our petition is calling on the hospital trust to look into the care and health of patients who have suffered injury following vaginal mesh implant surgery. A clear picture needs to be identified and communicated.
'Through our social support and campaign groups, it has come to our attention that there are many women who have suffered injury after surgery at Torbay Hospital and their injuries simply have not been addressed or recognised.
'Many of the injured women, like myself, are being forced to seek private treatment – at the cost of thousands of pounds – or are having to go to other hospital trusts out of the area to receive appropriate care in order to save their physical and mental health and well-being. This is not acceptable.
'We are calling for a full investigation to ensure the true health outcomes for all women who underwent mesh surgery at Torbay Hospital since its introduction is understood.
'This should cover details including exactly what information given to patients when seeking their consent to carry out this life-changing procedure. This investigation needs to be carried out with urgency.'
Vaginal mesh implants, which have caused worldwide controversy, are designed to be permanent and during the first weeks after surgery become embedded in the surrounding tissue to provide better pelvic support.
This means surgeons and doctors have to weigh up the risk of damage to nerves and nearby organs, including the bladder and bowel, before agreeing to their removal.
Torbay and South Devon NHS Foundation Trust stopped using the meshes indefinitely in October 2017, seven months after Ceri's operation.
Last July, the Department of Health and Social Care and NHS England agreed to immediately suspend their use after a Medical Devices Safety Review, led by Baroness Cumberlege, heard from many women about the 'life-changing' and 'life-threatening injuries' they had suffered.
However, the National Institute of Health and Care Excellence (NICE) last month issued new guidelines paving the way for the implants to be used again, with the review still to be completed.
Ceri said: 'I hope women don't see the new guidance and think all concerns have been dismissed.
'I have joined many support groups online and seen that thousands of women are campaigning from all over the world for their voices to be heard and for vaginal mesh to be banned.
'The NHS still isn't responding quickly to the plight of these desperately ill women or coming forward to find them and give them a clear plan of intervention with real care and time plans for removal, and further corrective surgery.
'Instead, desperately ill women all over the UK are being left to fight this whole battle for themselves. It is entirely wrong.'
A Torbay and South Devon NHS Foundation Trust spokesperson said: 'We are unable to comment about specific cases; however, we are committed to listening to our patients and the public to ensure that we're continually providing the highest quality of care possible.
'Due to public concerns about this type of surgery, as well as some updated NICE recommendations, we voluntarily stopped using the meshes in October 2017. Before we removed the meshes as a surgical option for our patients, we had been significantly reducing the number of procedures being carried out using these meshes, well before the NICE recommendations were made.
'As a trust, we have decided to stop using the meshes indefinitely and we are currently offering our patients the more traditional surgery options. However, we are closely monitoring the evidence and development of alternatives so that we can ensure that we are at the forefront of any future surgical developments.'A U-TURN ON THE PROLAPSE MESH BAN
Last month health chiefs announced a dramatic U-turn on the proposed ban on 'barbaric' vaginal mesh implants, prompting fury among campaigners.
The National Institute for Health and Care Excellence declared two years ago the implants should be outlawed for prolapse – a common childbirth issue that causes the organs to fall out of place.
However, the Government body has backtracked on its decision, despite having no new scientific evidence to prove the procedure is safe.
Furious victims of the procedure have slammed the announcement by NICE, which advises the NHS.
Kath Sansom, founder of campaign group Sling The Mesh (STM), described the guidelines as being an 'institutional betrayal of women'.
Currently there are restrictions on the controversial procedure, which is used for stress urinary incontinence as well as pelvic organ prolapse.
NICE said these will remain in place until all operations and complications are registered on a national database.
After that, only expert surgeons based at specialist centres will carry out operations for the common disorders – usually stemming from natural childbirths.
https://www.dailymail.co.uk/femail/article-6981375/Mother-three-spent-13K-vaginal-mesh-implant-removal-sex-husband-impossible.html
-
Devon hospital probe demanded by suffering women who received vaginal mesh surgery
May 1, 2019 | Devon Live
By Anita Merritt
A group of injured women from Devon will be hand delivering a letter today to Torbay and South Devon NHS Foundation Trust which lists the names of woman who severely suffered after being fitted with the controversial vaginal mesh implants at the hospital.
The move coincides with International Mesh Awareness Day.
The campaigners are calling for the hospital to carry out a full and open investigation and for the trust to reveal how it is going to offer physical and mental health care for those women who have had their lives changed devastatingly beyond recognition following the procedure.
Among those from The Action for Mesh Injured Patients group who will be at the hospital at noon, is mother-of-three Ceri Baker who was left at ‘breaking point’ following her mesh surgery.
The 43-year-old, of Dartmoor, has gone from being a fit and active woman with a zest for life to being in constant pain and discomfort after having the surgery in March 2017.
She cannot sit comfortably or do any of the physical activities and hobbies she always previously enjoyed with her children, and is unable to have sex with her husband of 20 years, Pete, without it being ‘extremely painful’.
After a nerve reaction in January of this year left her unable to walk for just half an hour, she decided to fund the removal of her mesh implant privately, which was carried out in March at a personal cost of £13,000. She would have waited over a year on the NHS for removal.
Ceri, who is a member Devon and Cornwall Mesh Awareness on Facebook, said: “We are currently a group of 10 women who are asking Torbay and South Devon Hospital Trust to hear and act on the following demands. We acknowledge that Torbay Hospital have stated, ‘as a trust we have decided to stop using the meshes indefinitely and we are currently offering our patients the more traditional surgery options’.
“It has come to our attention, via Facebook support pages, that many women have been injured from mesh surgery at Torbay Hospital and their historic injuries are not being addressed or heard effectively.
“Many of the injured women are being forced to go privately and to other hospital trusts to receive appropriate care in order to save their physical and mental health and well-being.
“We demand that a full investigation regarding the informed consent and real health outcomes for all women who have received mesh surgery at Torbay Hospital, since its introduction, is carried out as a matter of urgency.
“We demand that every woman who presents with injury and illness following mesh surgery is given information about how Torbay hospital will proceed in acknowledging their injury and support them.”
The vaginal mesh implants which have caused worldwide controversy were designed to be permanent and during the first weeks after surgery become embedded in the surrounding tissue to provide better pelvic support.
This means surgeons and doctors have to weigh up the risk of damage to nerves and nearby organs, including the bladder and bowel, before agreeing to their removal.
Ceri is currently taking legal action against Torbay and South Devon NHS Foundation Trust for the suffering she has endured and the impact on her life. She is being represented by medical negligence specialists Hudgell Solicitors, and claims she was never made aware of the risks by her surgeon.
Last July, the Department of Health and Social Care and NHS England agreed to immediately suspend their use after a Medical Devices Safety Review, led by Baroness Cumberlege, heard from many women about the ‘life-changing’ and ‘life-threatening injuries’ they had suffered.
However, the National Institute of Health and Care Excellence (NICE) last month issued new guidelines paving the way for the implants to be used again, with the review still to be completed.
Joining Ceri at Torbay hospital tomorrow will be fellow mesh campaigner Susan Morgan. The mum-of-two has relentlessly campaigned to stop the use of vaginal mesh implants after being left a virtual recluse due to the pain following surgery.
At the age of 51, Susan, of Brixham, was advised a urinary incontinence procedure would achieve her wish of being able to enjoy ballroom dancing.
Instead she has no control over her bladder and remains in constant pain from the vaginal mesh trans vaginal tape (TVT), which she says feels like a chemical burn and cheese wire inside her body.
Susan said: “Today is International Mesh Awareness Day where women from all walks of life and all over the world have been catastrophically injured, some have lost their lives or were unable to cope with the hideous pain.
“Ceri and I thought that with the growing numbers of women in my group that it was time that Torbay Hospital should account for historic mesh injury. It is simply not good enough to say they have 'stopped' using it. Women here need support and transparency.
“It has taken me 10 years of research, letter writing, campaigning, crying and fortitude to find a way of reaching out to other women in this difficult area of the country. The women in this group are seriously harmed, very ill both physically and emotionally, and exceedingly brave. We all hug each other and cry at the same time.”
A Torbay and South Devon NHS Foundation Trust spokesperson said: “We are aware that Ceri Baker will be delivering a letter to the trust today.
“We are unable to comment about specific cases; however, we are committed to listening to our patients and the public to ensure that we’re continually providing the highest quality of care possible.
“Due to public concerns about this type of surgery, as well as some updated NICE recommendations, we voluntarily stopped using the meshes in October 2017. Before we removed the meshes as a surgical option for our patients, we had been significantly reducing the number of procedures being carried out using these meshes, well before the NICE recommendations were made.
“As a trust, we have decided to stop using the meshes indefinitely and we are currently offering our patients the more traditional surgery options. However, we are closely monitoring the evidence and development of alternatives so that we can ensure that we are at the forefront of any future surgical developments.”
https://www.devonlive.com/news/devon-news/devon-hospital-probe-demanded-suffering-2818013
-
Multidistrict Litigation Basics: A Primer for Plaintiffs
May 1, 2019 | Mesh Medical Device News Desk
By Elizabeth Chamblee Burch
In recognition of World Mesh Awareness Day, I thought I’d write a longer post about the nuts and bolts of hiring an attorney and what should you expect if your case is part of a mass tort—e.g., if there are hundreds or even thousands of people who allege injuries from the same product?
I’m a law professor at the University of Georgia School of Law and an expert in mass torts and multidistrict litigation. I don’t represent any clients and I’m not affiliated with the attorneys or parties on either side in any way.
I am conducting a study on all multidistrict proceedings in which the defendant targeted or advertised its product or medical device to women. The project asks plaintiffs involved in these cases, which include pelvic mesh, to confidentially share their litigation experiences. If you’re suing over pelvic mesh, please, please participate by filling out this survey. I want to hear about what’s working well and what needs to be changed in these lawsuits and the more people I hear from, the better able I am to speak to those issues. I will not disclose any names or identifying information.
Finally, if you want to know more about the topics in this post, I have a book coming out this May, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, that includes data on some of the early pelvic mesh and hernia mesh litigation that might be of interest to you all. The first chapter is devoted to some of the basics of the MDL process.
Here are the topics this longer post covers:
hiring a lawyer;
what to look for when signing a retainer agreement;
what is multidistrict litigation;
what's the difference between a class action and multidistrict litigation;
why doesn't my lawyer want me to speak publicly;
what are plaintiff fact sheets;
how can I get my case out of an MDL proceeding;
my lawyer wants me to settle, but I'm not so sure;
I can't find a lawyer to take my case;
next steps you can take.
Hiring a lawyer
Finding an attorney can be hard work. Most good attorneys will expect you to meet certain criteria before they will accept your case. They need to know that they’ll be able to prove, based on a preponderance of the evidence (over 50%, in other words) that mesh caused your injuries.
Be wary of attorneys who appear ready to take your case before getting substantial information about your situation and your injuries. They may be part of the “advertising lawyers,” lawyers who run ads on late-night tv or who post on highway billboards, but who don’t actually try cases. Instead, they may sell “leads” to other lawyers or package your case together with others and send them to other lawyers to make money off of the referrals.
How can you find a lawyer that you can trust? First off, ask around. If you’re part of an online community of those with similar injuries, see who represents them. Ask them if they trust their attorney to act in their best interest, how their lawyer keeps them informed about the progress of their lawsuit, and whether their calls are returned promptly.
Mass torts tend to work differently than ordinary lawsuits, like a car accident. You’re unlikely to find a “local” attorney who can afford to take on the likes of Merck or Johnson & Johnson. So, even if you hire a local lawyer, that lawyer will likely refer your case to one of the attorneys who regularly handles these types of cases. And that lawyer may represent hundreds of clients. That means that you’re unlikely to get the individual attention that you might hope to receive.
So, before hiring a local attorney, ask who will be handling your case and who they will affiliate with. Ask them about their relationship with those attorneys—have they worked with them before? Are they able to get them on the phone when needed? How do they plan to keep you updated—emails, client websites, phone calls, etc.? If their style doesn’t match your needs, it’s better to know that on the front end and look elsewhere.
Be your own advocate: save everything that has anything to do with your health and your lawsuit—medical bills, doctors’ visits, you name it. If you have insurance, Medicaid, or Medicare, those companies may place a lien on any settlement you take. Ask your lawyer what she plans to do to help negotiate those liens down.
At this point in the pelvic-mesh litigation, you may have trouble finding a lawyer now. I explain more about why this may be toward the end of this article.Signing a Retainer Agreement
If you’re already plaintiff in a mass tort case like those involving pelvic and hernia mesh, chances are you’ve signed up with a law firm. Signing up with a law firm means signing a retainer agreement or a “fee agreement,” as they are sometimes called.
Retainer agreements spell out the law firm’s obligations to you and the fees and costs that you will incur as part of having that firm represent you. But signing on the dotted line doesn’t mean that clients actually understand what they're agreeing to—nor does it signal that the agreement itself is reasonable.
Fee agreements aren’t secret or confidential, but they are hard to find. I’ve unearthed a few agreements that are publicly available via court filings. Here are the top 5 eyebrow-raising provisions I found:
1. Contingent fee amount. Ethical rules in most states require lawyers to charge only “reasonable fees,” and some states, like New York, limit the percentage that attorneys can charge to one-third, or 33.3%. The provision below charges the client a whopping 40% even if the lawyer never files a lawsuit and 45% thereafter.
2. Common-benefit fees. In mass torts, judges often appoint “lead lawyers.” These attorneys are supposed to work on behalf of not just their own clients, but all of the plaintiffs in the proceeding. To pay them, judges withhold a portion of a plaintiff's settlement proceeds. The withheld percentage can range from 3-15%. Common-benefit fees should be deducted from the individual plaintiffs’ attorney's contingency fee--NOT heaped on TOP of that contingency fee as in the provision below. So, a plaintiff who agrees to a 33% contingency, still pays 33%, it just means that her lawyer must share a portion of that fee with the lead lawyers.
But in the excerpt below, the client had to pay a 45% contingent fee plus Judge Goodwin’s 5% court-ordered fee because of the retainer agreement, resulting in an eye-popping 50% contingent fee. This is fundamentally wrong and cuts against every theory of common-benefit fees that I’ve encountered.
3. Charging Interest on Costs and Expenses. Law firms pay a lot of money to develop a client’s case. They hire pricey experts to prove causation and they front more mundane expenses like civil filing fees and copying costs. Read the fine print carefully here—is the lawyer charging you to fly on private planes? Is your lawyer charging you interest on those expenses? Charging clients interest on expenses like in the clause below is troubling. It means that the longer a case lingers in court (via a protracted MDL, for example), the more a client must pay for costs.
Some lawyers don’t charge interests on costs at all, whereas others charge between 7 and 12%--a fairly big tax on your recovery if they spent that money early in your case. It’s a hidden expense, and one that you should be aware of.
4. Withdrawing from the Attorney-Client Relationship. States’ ethics rules dictate when a lawyer can “fire” a client, or withdraw from the representation. Model Rule of Professional Conduct 1.16(b) allows a lawyer to withdraw for no reason at all only if doing so will have no material adverse effect on the client’s interest. Clauses like the one below, which allow counsel to withdraw at any time, attempt to circumvent the protections afforded by the ethics rules.
5. Arbitration Provisions. For years, plaintiffs’ attorneys have lambasted arbitration provisions—and rightly so. Arbitration provisions allow those with the upper hand in contract bargaining to send a dispute to arbitration and some even allow that party to pick the arbitrator (the person who decides the case, in other words). So, imagine my surprise when I found that plaintiffs’ attorneys are taking advantage of arbitration provisions and waiving plaintiffs’ rights to sue them collectively when it suits them.What is Multidistrict Litigation (MDL)?
Multidistrict litigation or “MDL” as it's known is the process that federal courts use to coordinate pretrial proceedings for cases with factual similarities. Congress has statutorily authorized multidistrict litigation through 28 U.S.C. § 1407.
The Judicial Panel on Multidistrict Litigation includes seven judges from throughout the country who are selected by the Chief Justice of the United States Supreme Court.
The “Panel” decides whether to centralize related proceedings before a single federal judge and then which judge will receive those cases. To make this decision, the Panel considers many different factors such as whether discovery needs are similar, whether similar facts exist, the number of actions, and whether there are competing motions for class certification.
Once the Panel decides to transfer cases, they have to pick a judge to handle them. For this decision, they consider things like the location of discovery materials, the convenience of the witnesses, location of the majority of actions, knowledge of the transferee judge, and the willingness and motivation of a particular judge to handle an MDL docket.
The judge that the Panel selects to preside over related cases is called the “transferee judge.”
Chapter 1 of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation provides more details on what MDL is and what a plaintiff or her attorney might expect in an MDL situation.What’s the difference between a Class Action and an MDL?
Multidistrict litigation is the process that federal courts use to coordinate related cases before a single judge.
Sometimes that judge, the "transferee judge," will decide to certify a class action. Class certification must comply with Federal Rule of Civil Procedure 23. Rule 23 requires that class counsel adequately represent the class, that the class members are so numerous that joining them through conventional means is impractical, that class members' claims have common questions that can be answered collectively, and that class members' claims are typical of one another. In addition, to certify a Rule 23(b)(3) class, class members' claims must share a great deal in common. In the words of Rule 23, those common questions must predominate over individual questions.
Most mass torts are not certified as class actions, though there are some exceptions like the NFL Concussion case.
Chapter 1 of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation provides more details on why so few mass torts are certified as class actions (and the trouble that this may cause).Why Doesn’t My Lawyer Want me to Speak Publicly?
I think the attorneys are worried about two things: 1) that whatever a client says publicly could be used by the defense to contradict what the client says “on the record” in a deposition or through a plaintiff fact sheet; and 2) that relaying certain information publicly could risk waiving the attorney-client privilege.
Both are valid concerns. In individual representation, it would be easier for a plaintiff to explore the rationale behind and the parameters of that pre-settlement ban, but in mass representation, lawyers tend to issue the blanket command of “don’t discuss it.”
Post-settlement, what a plaintiff can divulge is necessarily constrained by the terms of the settlement. Some confidentially provisions are more stringent than others, prohibiting clients from discussing the settlement or the facts surrounding it at all, whereas others prohibit plaintiffs from disclosing the amount.
I do think plaintiffs’ lawyers mean well, but it can be hard for clients, who feel isolated by the events. I’ve been encouraging plaintiffs to file adverse event reports or make anonymous comments to the FDA when it solicits public comments on a topic like mesh or breast implants. I’ve also encouraged plaintiffs to participate in the procedural justice study, which keeps plaintiffs’ identities confidential, and asks about their litigation experiences. How someone feels about the litigation process itself does not pose the same sort of risks.What are Plaintiff Fact Sheets?
Fact sheets are part of what’s known in litigation as “discovery.” Fact sheets tend to exist only in multidistrict proceedings by transferee judges.
Different proceedings request different levels of information, but most ask for information about health records, injuries, and personal information such as your name and address. It’s important to fill these out in a timely way while consulting with your attorney. Many of them must be signed under penalty of perjury, so it’s important to be as accurate as possible.How Can I Get My Case Out of an MDL Proceeding?
Having a case sent back to its original court or "remanded" to its court of origin is extremely difficult.
Historically, fewer than 3% of cases coordinated through an MDL proceeding are ever returned to the federal court in which they were filed.
Procedurally, only the MDL Panel can remand a case. In theory, they could do this on their own. In practice, they do so only upon a suggestion of remand by the transferee judge.
Chapters 5 and 6 of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation describe how the lack of remand (and the inability to threaten to take a case to trial) can hurt plaintiffs' cases. It likewise suggests several reform proposals, including episodic remands.My Lawyer Wants Me to Settle
If you’ve received a settlement offer that you’re happy with, great! No need to keep reading this. If not, keep going.
On one hand, all settlement offers are compromises by their very nature. Neither side gets exactly what they want. But my research has shown that some plaintiffs feel strong armed by their attorneys to accept a deal. I can’t tell you whether to say yes or not, only you can decide something like that. But I can explain where that pressure comes from so that you can make a more informed choice.
First, aggregate settlements are fundamentally different from a settlement that you might strike if you were to get into a car accident. In that sort of case, the defendant would offer you money in exchange for dismissing your claim. And you'd know exactly what you were getting--the amount, the terms, etc.
But all the mass tort deals that I've analyzed differ substantially: aggregate settlements don't offer plaintiffs a fixed amount, but a chance to recover through a settlement program that may or may not compensate them. The so-called settlement is actually a deal between plaintiffs' attorneys and the defendant, not between the plaintiff and defendant as in our car accident example.
That means that some of the terms are directed toward plaintiffs' attorneys, and some are directed at the plaintiffs themselves. As we will see, it also means that plaintiffs' attorneys might be put in a pickle: their obligations under their agreement with the corporate defendant might conflict with the obligations they assumed when they agreed to represent a plaintiff as a client.
Provisions targeting plaintiffs' attorneys can thereby push ethical boundaries that require them to act in each client's best interest.
Here are the worrisome clauses that you'll find embedded in many settlement programs (for that's what they are—programs, not actually settlements). I’ve included some examples below.
1. Walkaway, withdrawal, or "blow" provisions. These clauses provide corporate defendants with the amount of "closure" that they can live with. They allow the defendant to walkaway from or withdraw from the deal (blow the deal, so to speak) if fewer than the designated percentage of the plaintiffs sign on. The participation percentages that I've seen range from 85-100%.
2. Case-census provisions. The dealmakers (lead attorneys on the plaintiff and corporate defendant's side) jointly petition the presiding MDL judge to issue a census. The census then requires all plaintiffs' attorneys with a case in the multidistrict proceeding to register all of their clients with related claims. It doesn't matter if that client is suing in state court (or if no suit has even been filed at all). The census then becomes the denominator for the walkaway provision.
3. Attorney-Withdrawal provisions. These clauses require plaintiffs' lawyers to take steps to withdraw from representing clients who refuse to settle. (I find them among the most ethically questionable provisions.) 4. Attorney-Recommendation provisions. All participating attorneys must recommend that all of their clients enter the settlement program and use their "best efforts" to ensure that happens.
5. New Suit Deterrence provisions. These clauses aim to prevent new lawsuits from being filed once a settlement is announced.
6. Reverter provisions. Money that is "leftover" in a settlement fund after the program doles it out reverts back to the corporate defendant.
Let’s take a close look at withdrawal, attorney-recommendation provisions, and attorney-withdrawal provisions. What do they look like and how might they affect the advice your lawyer gives you?
Here is an example of each taken from American Medical System's Master Settlement Agreement with Freese & Goss, PLLC/Matthews & Associates. You'll first see the withdrawal provision, demanding that at least 95% of plaintiffs agree to settle, then the requirement that Freese & Goss use its "best efforts" to get all of its clients to sign the release, then the withdrawal of counsel provision:
This, by the way, is the only master settlement agreement for the mesh cases that I've seen. It was made public when AMS filed it as an exhibit to its 10K filing with the SEC. Most remain private, so I'm unable to confirm whether others are similar, though I suspect that they are.
Each provision urges plaintiffs’ lawyers to encourage their clients to settle. AMS wants to end the litigation, so the walkaway percentage says that unless AMS has enough plaintiffs who are willing to settle, then the deal is off.
In order to reach that threshold percentage (95%), the plaintiff's law firm must use its best efforts (read: do a little arm twisting) to get their clients to settle.
If that fails, then Freese & Goss must take steps to withdraw from representing those clients.
Having your attorney withdraw from representing you just because you don’t want to settle isn’t just ill timed, it may also violate the ethics rules that govern lawyers. But there is a good bit of grey area here.
Here’s what I mean: legal ethics professors Howard Erichson and Benjamin Zipursky have written extensively about the ethics of these provisions in the context of the Vioxx settlement. They explain that the ABA's Model Rule of Professional Conduct 1.16(a) governs whether and when a lawyer may terminate her relationship with a client. Here's what they have to say:Cases overwhelmingly reject the idea that a lawyer may fire a client for declining a settlement against the lawyer's advice. . . . Whether the stakes are immigration status or tort compensation, the settlement decision belongs to the client; a lawyer may not use the treat of withdrawal to hijack that decision.
Like the Vioxx Settlement Agreement, the AMS deal requires lawyers to take steps to withdraw from representing clients who decline to settle. Can Freese & Goss's obligations to AMS (the defendant!) provide good cause to withdraw under the ethics rules? Put differently, can a plaintiff's lawyer's deal with the corporate defendant allow an attorney to shirk obligations to a client?
Professors Erichson and Zipursky don’t think so. They put it bluntly:[T]he very idea that entering into a contract with a client's adversary could establish good cause to withdraw from representing a client is troubling.
In other words, no.
What about the requirement that Freese & Goss recommend that all of their clients settle? Should we worry about that, too?
Let me phrase the question differently: does everyone involved in the pelvic mesh litigation have similar injuries and circumstances? Of course not. Would everyone be comfortable if their attorney gave them a uniform recommendation? Again, I suspect not. We are each individuals.
Clients may share some things in common and many are aggregated in the MDL before Judge Goodwin, but there are important differences. A deal may be good for some and not for others. A deal might, for example, not define certain surgeries as "mesh related." That could mean that a client with only one mesh removal surgery is well compensated, but others with multiple surgeries that don't all fit within the governing definition aren't.
Lawyers' obligations in mass torts that aren't certified as class actions run to each client individually for precisely this reason.
Professors Erichson and Zipursky conclude that both mandatory recommendation and withdrawal provisions violate the ethics rules:The mandatory-recommendation provision is inconsistent with the lawyer's duty to give independent and loyal advice to clients. The mandatory-withdrawal provision violates the bar on practice restrictions, the constraints on terminating the lawyer-client relationship, and the principle that the decision to accept or reject a settlement belongs to the client.
I agree. Unfortunately, that doesn't mean that it doesn't happen. As I explore in Mass Tort Deals, 34% of the judges in my dataset allowed attorneys to withdraw from representing non-settling clients.I Can’t Find A Lawyer to Take My Case
Once a corporation decides to settle, it doesn’t want new lawsuits being filed against it. So, essentially it tries to buy off plaintiffs’ attorneys to prevent them from filing new suits.
There are three groups who are affected by what I call “new suit deterrence provisions.”
1. plaintiffs whose lawyers have withdrawn from representing them, converting them into DIY pro se plaintiffs;
2. plaintiffs who have fired their attorneys for allowing them to fall through the cracks; and
3. new and would-be plaintiffs. Once corporate defendants start settling cases, it shows up in the press. This can bring the litigation to the attention of those who didn't know about it before, but who are having similar problems, and prompt them to sue.
So, here's the rub: corporate defendants don't want new suits filed against them, but the ethics rules that govern lawyers want to ensure that the best and brightest lawyers remain available to the public to take on new lawsuits. The Model Rules of Professional Conduct (Rule 5.6(b)) state that:A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
In other words, defendants shouldn't be able to buy off the plaintiffs' lawyers by settling with their clients. But they do. Here’s how:
First up: American Medical System, Inc.'s deal with Freese & Goss, which requires that lawyers affirm that they have no intention to represent or solicit new clients:
And here's a clause from the Fosamax Master Settlement Agreement:
Isn't it clever how they've identified the ethics rule, declared that they in no way intend to violate it and then try to weasel around it by saying they have "no present intention" to solicit new claims?
Declaring that you're not violating the legal ethics rules and not violating the legal ethics rules are two very different things.
Provisions like these have been the subject of academic debate. Professors Stephen Gillers and Richard Painter argue that:Market forces should assure that as some lawyers retire from suing certain defendants, others will replace them.
Based on what I know, I'm dubious about that. Perhaps those “market forces” exist, but I haven't seen them yet.
What all of this boils down to is this: you must be your own advocate.Next Steps
I want to hear more about your experiences with the justice system. The only way for the system to improve is for judges, attorneys, and academics to have a better idea of what works well and what doesn’t from the plaintiffs’ perspective.
Defendant corporations have many advocates—their attorneys, and the U.S. Chamber of Commerce, to name but two.
Yet, plaintiffs’ voices are often muted when it comes to reform because there are so many plaintiffs and judges assume that their attorneys speak for them. I’m not convinced that is the case, so I’m hopeful that you will share your experiences directly with me through the procedural justice survey.
https://www.elizabethchambleeburch.com/blog-1/multidistrict-litigation-basics-a-primer-for-plaintiffs?fbclid=IwAR3iRj-0WJW2chLmKTLMFh4qTkH5Q6Q3LQsy8iq1uVpuk9SMvQOufUkxFUk
-
May 1, 2019 | Law.com
By Amanda Bronstad
Welcome to Critical Mass, Law.com’s weekly briefing for class action and mass tort attorneys. Here’s what’s happening this week: Find out what Boeing's CEO said as more lawsuits land over last month's Ethiopian Airlines crash. The Third Circuit reversed a key part of U.S. District Judge Anita Brody's outside funding order in the NFL concussion case. Class actions have called Fisher-Price's recall of 4.7 million Rock 'n Play sleepers inadequate, but the CPSC's announcement was unusually up front.
...Here’s what else you need to know:
Mesh Milestone: Johnson & Johnson got hit with a $120 million pelvic mesh verdict in Philadelphia last week. The award includes $20 million in compensatory damages and $100 million in punitive damages to Susan McFarland, a 68-year-old woman who ended up with chronic urinary tract infections after having a pelvic mesh device made by Johnson & Johnson’s Ethicon surgically implanted to treat incontinence. It’s the seventh jury verdict in the Philadelphia Court of Common Pleas against Ethicon over its pelvic mesh devices, but the first over $100 million. Tracie Palmer and Braden Lepisto (Kline & Specter) represented McFarland, and Ethicon’s lawyers were Kate Skagerberg (Beck Redden), Adam Spicer (Butler Snow) and D. Alicia Hickok (Drinker Biddle)...https://www.law.com/2019/05/01/as-lawsuits-take-flight-boeing-facing-burgeoning-legal-bills-plus-lit-funders-gain-ground-in-nfl-concussion-deal/
-
May 1 International Mesh Awareness Day
May 1, 2019 | Mesh Medical Device News Desk
By Jane Akre
May first is the Worldwide Mesh Awareness Day, a term coined by the Mesh Awareness Movement, though recognized internationally.
Unfortunately, polypropylene pelvic mesh injuries are shared internationally (hernia mesh as well) and various groups are recognizing the May first date and the entire month of May as a month to share awareness of mesh complications.
All of the efforts are helping to raise the profile globally, though in the States, mesh is still used, specifically a mesh “sling” used to treat as incontinence. While many doctors are backing off of a sling as a first-line treatment, one medical society, AUGS, (American Urogynecologic Society) still refers to slings as the Gold Standard, even those meshes found defective in a court of law.
AUGS does not want to have “tools” taken out of its “toolbox” despite all of the reports of injuries. Women in the state today are told by doctors that the mesh is “different” than the “bad mesh” and that that has been taken off the market.
That is not true, polypropylene meshes for incontinence remain on the market, and with varying pore sizes, it is all a polymer plastic, the same material used to make hernia mesh.
Mesh Awareness Movement Groups Globally include:Mesh Awareness Australia-
Founder Justine Watson has been doing a round robin of interviews to bring awareness through a Facebook page (here) and website (here). Watson has done a tremendous amount of media outreach in anticipation of this day and was welcomes from the morning shows to Australia’s version of 60 Minutes (here).Here is Mesh Injured Day- What You Can Do- What You Need to KnowSee her on YouTube here.The group distributed a news release for Mesh Awareness Day (here)
and the group has done an excellent job in outreach!Mesh Awareness Movement in the U.S. – Members have appeared at trials and campaigned about the hazards associated with the use of transvaginal and hernia mesh implants. MAM has a Facebook page (here).
The Mesh Awareness Movement- U.S. was featured in the documentary, The Bleeding Edge,
Scottish Mesh Survivors – Thanks to the energy and persistence of the Scottish Mesh Survivors and the aggressive front-page reporting by Marion Scott, the group got the ear of Parliament which held hearings and listened to first hand accounts of the injuries imposed by transvaginal mesh, the same mesh manufacturers use in the U.S.
What’s so apparent is that in Scotland, Scott wins Journalist of the Year and her paper, the Sunday Post, is awarded for “Campaign of the Year” for its mesh campaign. In the U.S., reporter are discouraged from “campaigning” and shy away from the word “transvaginal.”
Elaine Holmes and Olive McIIroy have spearheaded the effort. See their Scottish Mesh Survivorswebsite here.
Sling the Mesh- UK
An active group in England is campaigning against mesh use there as well. Addressing Parliament, the group is monitoring the progress of lawmakers in having mesh banned, though an official report was disappointing. They are making their voices heard. See their website here to follow the issues in England.
Thanks to Kath Sansom and others for their organization of the group of campaigners.
Thanks to everyone addressing the horrors of plastic implants around the world!
https://www.meshmedicaldevicenewsdesk.com/may-1-worldwide-mesh-awareness-day/
-
|
Client Attorney Privileged/Attorney Work Product/At Request of Counsel
Online Sources
Add recipients
Suggested