Preview Newsletter
ethicon 5/27
-
How Law Firms Use Facebook and Other Data to Track Down Medical Victims
May 27, 2015 | Bloomberg Business
By Doni Bloomfield and Shannon Pettypiece
...A recent spate of lawsuits related to transvaginal mesh implants has made patients who have undergone the surgery a valuable commodity... -
Class Actions Aren’t the Only Game in Town for Product Liability Claims
May 27, 2015 | Financial Post
By Julius Melnitzer
There has been a host of individual settlements recently in lawsuits filed over allegedly defective pelvic mesh devices. -
Campaigners Call for Surgical Mesh Inquiry
May 27, 2015 | 3 News (New Zealand)
By Emma Jolliff
Campaigners against the use of surgical mesh have told a select committee there is new evidence that the polypropylene mesh degrades in the body, causing severe pain and complications. -
Surgical Mesh Claims Mount
May 27, 2015 | Radio New Zealand News
The number of compensation claims by patients suffering from complications caused by a controversial surgical mesh is increasing.
Client Attorney Privileged/Attorney Work Product/At Request of Counsel
Online Sources
-
How Law Firms Use Facebook and Other Data to Track Down Medical Victims
May 27, 2015 | Bloomberg Business
By Doni Bloomfield and Shannon Pettypiece
For ambulance chasers, persistence and a phone book just don’t cut it anymore. Law firms, which once relied on television commercials, billboards, and cold calling numbers in the white pages to find plaintiffs for medical lawsuits, have begun to embrace technology. To locate their ideal pharma victims more quickly and at lower costs, they're using data compiled from Facebook, marketing firms, and public sources, with help from digital bounty hunters like Tim Burd.
Burd is a devoted practitioner of the art of sales. His Skype username begins with the phrase made famous by Glengarry Glen Ross, a play about desperate real estate salesmen: “Always be closing.” As chief executive officer of DigitizeIQ, Burd feeds demographic data from the U.S. Centers for Disease Control and Prevention into general marketing tools offered by Facebook to identify people most likely to be exposed to a particular drug or medical treatment. For example, Burd was hired for a lawsuit claiming a medical device used in hysterectomies, known as a laparoscopic power morcellator, causes ovarian cancer to spread in patients. The CDC says women over 55 are most likely to contract that kind of cancer. Burd says CDC data are especially powerful in combination “with Facebook, which is why we love it so much, because there's ovarian cancer support groups and stuff like that. So we target women in the country over the age of 55 that ‘like’ an ovarian cancer support group. That's a pretty targeted demographic.”
A recent spate of lawsuits related to transvaginal mesh implants has made patients who have undergone the surgery a valuable commodity. The lawsuits claim the mesh inserts, which are designed to repair damaged pelvic tissue, have resulted in health complications for many women. Using CDC data, Facebook, and other information, Burd says his San Francisco company has turned up the names of about 10,000 women who may have gotten the procedure. Personal injury lawyers will pay as much as $3,000 per name, says Burd. “We use age, gender—it's only women that qualify, age typically 40 and up. It's happened to a lot of parents because after they had a kid, that messed up their insides,” he says. “So we cast a wide net, really, and then narrow it down from there, from whatever does well.” Facebook declined to comment.
The sophistication of newer plaintiff procurement techniques is leaving pharmaceutical companies inundated by mass tort lawsuits. Johnson & Johnson is facing more than 24,000 lawsuits over its vaginal mesh implants. A jury in California ordered the company on March 5 to pay $5.7 million to a woman who said one of its vaginal mesh implants eroded inside of her. In January, J&J lawyers told a federal judge that firms were violating medical data laws to track down plaintiffs.
These kinds of suits are costing big pharma billions of dollars. Bayer has paid out about $1.92 billion in the U.S. to settle some 9,600 claims saying its contraceptives caused blood clots, according to a company report, which also noted that the drugmaker did not admit guilt in those settlements. On April 28, Takeda Pharmaceutical agreed to pay $2.37 billionto settle suits accusing the company of hiding cancer risks associated with its Actos diabetes medicine. Takeda declined to comment, and Bayer referred a request for comment to the company report, which also says that as of April 20, about 1,000 more claims are under review for settlements.
The work, while lucrative, doesn't make Burd or his ilk particularly popular at dinner parties. “We definitely get a lot of people that yell and scream at us online—‘ambulance chasers,’ and, ‘You lawyers are ruining the country,’ yada yada yada,” he says. “Unless you're advertising kittens, or puppies, or Super Bowl stuff, or Playboy—stuff everyone pretty much likes—there’s always going to be a group of people who give negative feedback.” But Burd says the work is morally compelling because it helps victims of deficient medical products. “They don't realize how many people are affected,” he says.
The business of locating potential victims for mass tort cases, known in the industry as lead generation, isn't new, but it's maturing dramatically. Specialists are tapping millions of bits of public and nonpublic data to slice and dice profiles by age, gender, geography, and medical condition. Mass tort cases have surged in the past two years. The number of pending federal suits that span multiple districts in the U.S. jumped 94 percent from March 2013 to April 2015, according to data compiled by Bloomberg. Philadelphia's Complex Litigation Center, the first U.S. court to focus exclusively on mass tort lawsuits, saw filings climb 150 percent in 2014, according to the Pennsylvania Record, a legal journal. The rise there was driven by pharmaceutical cases, including 987 involving Johnson & Johnson's schizophrenia drug Risperdal and 694 pelvic mesh cases. There is no evidence, however, linking the rise of mass torts to increased use of online data. “Mass tort advertising as big business, I think, is only going to continue to increase in the future,” says Cary Silverman, an attorney at Shook, Hardy & Bacon in Washington.
The legal machine may be a patently American tradition, but the industry extends far beyond the nation's borders. At offices in Ahmedabad and Gujarat, India, Solution BPO Services employs 160 operators making as many as 20,000 calls a day. Many of those are to possible victims of pharmaceutical misdeeds in the U.S., in addition to general telemarketing and insurance-related calls. Quality data are now crucial as lead generators face more competition. Finding a single one can take 5,000 to 6,000 calls, even when using demographics and info people volunteer in online surveys, says Deepak Jain, the chief executive officer of BPO.The website of Solution BPO Services, a call center in India, says it has generated leads for patients possibly harmed by transvaginal mesh, Actos, and Bayer's Yaz birth control.Photograph: Picture-Alliance/dpa/AP Images
The company declined to specify the types of data it purchases. Data brokers such as Acxiom sell data on almost every American and can place them into hundreds of different categories for pennies a name. “We sell our data for marketing purposes to all legitimate marketers, but lead generation is not an area of focus for us,” says Ines Gutzmer, an Acxiom spokeswoman. Jain also declined to name his clients or pending cases, but according to BPO'swebsite, the company has generated leads for patients harmed by transvaginal mesh, Actos, and Yaz birth control.
Drug companies are struggling to make sense of changes in the legal industry. Johnson & Johnson filed anaffidavit calling attention to an Indiana nurse who said she'd received about 25 calls from solicitors in May 2014 claiming to have records showing she'd taken Yaz, a Bayer drug that has been linked to blood clots. In one call, the woman, who was not named in the court transcript, was asked about her recent surgical history, and the caller said she could receive up to $40,000 if she was willing to say she had complications related to a vaginal mesh implant. J&J didn't name any call centers. The plaintiffs' lawyers said in a court filing that they didn't hire firms to solicit bogus cases. J&J later filed to abandon the motion in a West Virginia district court without giving an explanation. “We continue to work with the plaintiff lawyers in the litigation based in West Virginia to try and get to the bottom of what is a disturbing trend that could potentially threaten the integrity of the judicial system,” says Ernie Knewitz, a spokesman for J&J.
On April 15, a Bloomberg reporter received a call from a woman who seemed to be relying on a script quite similar to the ones cited in J&J's affidavits. The caller said she was reaching out regarding “medical compensation.” She then told the reporter, “We are helping lady undergoing bladder surgery.” When the reporter called the number back, a man who identified himself as David Miller picked up. He said he worked for the Legal Help Center in Tallahassee, Fla., and had found the reporter’s cell phone number from the “county medical registry.” Such government offices do not exist in the state of New York, where the reporter is based. Miller couldn't be reached for further comment because his number has been disconnected.
In the initial call, Miller explained that his company had received phone numbers in bulk and was calling them to see if they had used certain medical devices or drugs and whether the people had had any complications. He didn't have her medical records, he said. The reporter does fit the ideal demographic, however, for mesh procedures. She's in her 30s and recently had a child, info that's easily attainable from data brokers for a small fee. Toward the end of the conversation, Miller proceeded to fish for information, asking if the reporter’s friends or relatives had any problems with vaginal mesh implants or whether she’d happen to suffer any issues related to Bayer’s prescription blood-thinner Xarelto. Even with all of the data available, salesmen sometimes can't shake old habits.
-
Class Actions Aren’t the Only Game in Town for Product Liability Claims
May 27, 2015 | Financial Post
By Julius Melnitzer
There has been a host of individual settlements recently in lawsuits filed over allegedly defective pelvic mesh devices.
What’s interesting is that these settlements have arisen out of “mass tort” litigation, as opposed to the usual product liability class actions you’d expect consumers to bring against manufacturers.
Mass tort litigation, like class actions, arises when a defective product injures a large number of consumers. Because defects can cause a wide range of problems for claimants, the cases may be difficult to group into a single class that satisfies the “commonality” requirement for certification of class actions.
Mass tort lawsuits solve that problem by allowing cases to proceed individually. Claimants may have different lawyers, all of whom may share information, research and resources. In many cases, the results of the first few trials become the principles governing settlement of the remaining cases.
In May 2014, Health Canada issued warnings about complications arising from mesh implants, which it first licensed in 1998. Plaintiffs’ lawyers filed at least three class actions. But, encouraged by the results of parallel litigation in the U.S., plaintiff-side law firm Will Davidson LLP in Toronto decided on a mass tort approach for its several hundred clients.
So far, plaintiffs have succeeded in seven of the eight parallel pelvic mesh litigation trials in the U.S. Defendants in the Canadian actions have taken note. At least one of the defendants to the individual Canadian cases entered into talks with 41 claimants, and settled 33 of those claims, says Paul Miller, a lawyer with Will Davidson.
“As I went through the process of getting instructions, I saw the advantage of people having the right to control their own decisions, especially in personal injury cases,” Miller says. “The individual client just doesn’t have the same degree of control in a class action.”
Meanwhile, the Canadian pelvic mesh class actions are stalled. In April, Justice Paul Perell of the Ontario Superior Court retrieved on 2015-05-26" href="http://www.canlii.org/en/on/onsc/doc/2015/2015onsc2470/2015onsc2470.html?resultIndex=2" target="_blank" style="padding: 0px; margin: 0px; color: rgb(51, 102, 205); outline: 0px;">refused to certify a case involving 19 different pelvic mesh products manufactured by the Bard group of companies. Justice Perell ruled that the plaintiffs had not established a defect common to all the products, a requirement essential to certification.
Ironically, the Bard ruling may prove a catalyst to the mass torts approach. While refusing to certify the class action, Justice Perell allowed the plaintiffs to bring an “alternatives motion” to determine whether their claims could proceed in a different way, including “some newly devised procedure for a mass claim.”
Michael Peerless of McKenzie Lake Lawyers LLP in London, Ont., who represented the plaintiffs in the Bard class action, says that Justice Perell acted on his own initiative.
“Neither side argued for an alternatives motion,” he says. “So despite my clients’ disappointment over the refusal to certify, there’s something going on here. [Justice] Perell certainly opened the door to mass tort proceedings.”
Michael Eizenga of Bennett Jones LLP in Toronto, who acted for Bard, says there may well be individuals who have the right to have their cases adjudicated other than by class action.
“From a defendant’s standpoint, addressing cases individually is much fairer than facing a huge class action where the necessary commonality doesn’t exist,” Eizenga says. “Cars can have problems, but that doesn’t mean that all accidents arise from the same defect.”
Product liability cases are rarely certified in the U.S. because the class action certification threshold there is higher, Peerless says. American defendants therefore find it easier to get their heads around settling mass tort litigation.
“Big U.S. defendants are used to dealing with mass torts,” Peerless says. “They can understand that a defect can give rise to 150 good cases, for example, but the last thing they want is 150 trials, so they find a way to resolve them. What they can’t get their head around is settling a class action that has many more claims, but only on a theoretical basis.”
One of the problems with the mass tort approach is that the cost of litigation militates against lawyers taking on smaller claims. “It’s much more difficult to take on individual cases with minimal damages, which is a problem that class proceedings avoid,” Miller says.
Still, Lawrence Thacker of Lenczner Slaght Royce Smith Griffin LLP says there are some distinct advantages for plaintiffs in the mass tort approach.
“Plaintiffs can go all the way to trial and judgment on a single case without having to give up other claims if they lose,” Thacker says. “From the defendant’s perspective, however, mass torts might be more of a threat because they can only win one case at a time.”
-
Campaigners Call for Surgical Mesh Inquiry
May 27, 2015 | 3 News (New Zealand)
By Emma Jolliff
Campaigners against the use of surgical mesh have told a select committee there is new evidence that the polypropylene mesh degrades in the body, causing severe pain and complications.
Carmel Berry and Charlotte Korte are calling for a commission of inquiry and a national register so that mesh implants and removals can be tracked.
Surgical mesh is used in the treatment of hernias, pelvic prolapses and incontinence, among other procedures.
Ms Kortee and Ms Berry are campaigning for a commission of inquiry into its use, telling a select committee there's new evidence from a Canadian researcher that shows it's harmful.
"It does degrade in the human body and it does have a chemical reaction in the human body, and this is contrary to the manufacturers' instructions," says Ms Berry.
Since April 2005, more than 550 ACC claims involving the mesh have been decided, with 80 percent accepted.
"Why would we have one agency accepting ACC claims while we continue with the use of a product that's leading to claims?" says Labour health spokeswoman Annette King. "It doesn't make sense to me."
For Ms Berry and Ms Korte it's personal. Both suffered pain and complications when mesh was used in the treatment of a prolapse.
"I basically couldn't stand up for longer than two minutes," says Ms Korte. "I was in such chronic pain."
"The mesh didn't do its job," says Ms Berry. "I re-prolapsed and then I suffered from a chronic pain condition."
They say the mesh needs to be reclassified as what's known as a class III medical device.
"[That] would require manufacturers to provide additional safety evidence before they could continue to market those products," says Ms Berry. "We don't believe manufacturers have that evidence."
They're also calling for a register, like that established for artificial hips and knees so that the use of mesh and its outcomes can be monitored.
3 News
-
May 27, 2015 | Radio New Zealand News
The number of compensation claims by patients suffering from complications caused by a controversial surgical mesh is increasing.
The Labour Party has obtained figures showing 466 cases were put before ACC to the end of June last year.
The mesh implants - used for the treatment of pelvic organ prolapse, stress incontinence and hernia repair - can cause complications such as infection and injuries to organs.
Labour's Annette King said the medical safety regulator, Medsafe, appeared to be at odds with the ACC on the effectiveness of the device.
"What I find is the joined up thinking between a lot of claims going into ACC and being accepted for a medical device.
"So why would we have one agency accepting ACC claims while we continue with the use of a product that is leading to ACC claims? It doesn't make sense to me."
Medsafe had declared the mesh safe, as long as it was used in line with the manufacturers' instructions, but was continuing to monitor formal medical reports of it harming people.
Client Attorney Privileged/Attorney Work Product/At Request of Counsel
Online Sources
Add recipients
Suggested