AMS Granted Limited Discovery into Alleged "Scheme" in Transvaginal Mesh Litigation
On Friday, October 11, AMS, American Medical Systems, was given a limited green light to look into what it alleges could be a fraudulent “scheme” to stack the deck in the plaintiff’s favor in the ongoing transvaginal mesh litigation.
At the same time, those alleged in the questionable activities were granted protection from an overbroad fishing expedition by AMS into thousands of mesh-related documents.
Its owner, attorney Daniel Christensen, had been subpoenaed by AMS to be deposed and provide as many as 20,000 documents related to his business dealings with Florida-based “entrepreneur” Otto Fisher and his associated firms, One Point Orthopedic and Neurosurgical Group, and Physicians Surgical Group (PSG).
On Friday, the U.S. Magistrate Judge in Huntington, West Virginia, Cheryl A. Eifert, agreed that the subpoena was overly broad and burdensome and granted Christensen’s motion for a Protective Order. Within 10 days of the order, AMS can obtain the documents in MedStar’s possession related to Fisher, PSG and any other entity operated by Fisher to the extent they pertain to treatment arranged for mesh-injured women.
If there is a need for additional records, MedStar and AMS should agree on the scope of discovery. If some of the information is proprietary and/or commercial information, the two sides should meet and agree on the terms of a protective order.
Eifert writes, until discovery is conducted to uncover the alleged “scheme” between Fisher and Christensen, the “wholesale discovery of MedStar’s files is not merited.”
Alex Macia, an attorney for Christensen e-mailed Mesh News Desk:
“The Magistrate Judge accepted our proposal for limited discovery of the PSG (Physicians Surgical Group) documents in those accounts relating to AMS plaintiffs in this litigation. We proposed, and the court agreed, to produce records relating to the cases in which PSG and AMS are involved.
“However, it is our belief that the total PSG accounts involving AMS products in this MDL could be as few as the 9 that we can confirm, but perhaps as many as 17, or so, depending on what remains in the works. The critical distinction is that the Court agreed to our proposed limitation to PSG accounts involving AMS product in this MDL.”
What’s This All About? / Background
AMS, American Medical Systems (part of Endo Health Solutions), is one of six transvaginal mesh manufacturers which faces 10,633 (as of this writing) defective product claims consolidated in multidistrict litigation (MDL) in federal court in West Virginia.
AMS says one of its consultant-doctors, Dr. Andrew Cassidenti, a urogynecologist based in Orange County, California, told company attorney’s that he was solicited by Florida entrepreneur, Otto Fisher to perform mesh revision and removal surgeries in this and other pelvic mesh litigation.
Ultimately he did not agree to the “mass revision” proposal after both sides allegedly agreed he was not a “good fit.” See background story here.
AMS sought to discover whether Fisher, his business entity, One Point Orthopedic and Neurosurgical Group and Christensen (MedStar) “were part of a “scheme” to arrange unnecessary surgeries from a select group of surgeons who would charge a flat fee, whether mesh was found or not, and no matter how long the surgery took. In exchange the surgeons were allegedly told to include particular phrases in their operative notes such as “mesh erosion,” “bunched-up mesh,” and “defective mesh.”
AMS says the end result would be to create fraudulent medical records to increase the value of pelvic mesh cases” involved in the MDL.
“Such documents, even if prepared by Plaintiffs’ counsel, were not prepared “to aid in litigation” – they were created to subvert it.” ~ AMS Doc. #892.
AMS then served subpoenas for the production of documents on the two business entities and additional subpoenas on Fisher and Christensen for their depositions. Christensen filed a motion to quash the subpoena stating it was “overly broad and burdensome and seeks confidential and proprietary information.”
Christensen will make himself available for a deposition, however, his protective order was granted specifying the terms of his deposition. Both sides must meet and confer to agree on a convenient time, date, and location for this deposition.
Fisher agreed to be deposed. AMS believes he may be just one of many individuals arranging surgeons to perform mesh surgeries and preparing the records for litigation purposes.
The Problem for Plaintiffs
Editorial~ Women referred to doctors performing “mass revisions” who are not fully capable of doing a complete mesh removal may be left in worse shape than prior to surgery. We know from litigation so far that doctors were not trained on how to remove transvaginal mesh if something went wrong. Only a few doctors around the country, using translabial ultrasound to see the mesh prior to surgery, seem able to surgically remove the mesh and its arms and anchors. Some of these experts state that a partial removal can leave “shrapnel” or mesh fragments to migrate in the body. Offering a flat fee for whether mesh is found or not, indicates a woman may be a pawn in a primarily for-profit exploratory procedure that does not represent the best medical care and patient follow-up to ensure a positive outcome.
Pretrial Order #88, Motion to Quash and Motion for Protective Order,
AMS Document #892. Case 2:12-md-02325, filed September 26, 2013.
Breaking News! AMS Alleges “Scheme” to Profit from Transvaginal Mesh Injuries, October 10, 2013
AMS Website www.americanmedicalsystems.com/home.html
AMS makes the Perigee, Elevate and Apogee transvaginal mesh (TVM) used to treat pelvic organ prolapse (POP), a common condition in women following pregnancy, due to weak collagen or as a result of aging. Apogee is no longer for sale in the U.S. according to the AMS website.
AMS also makes the Sparc and Monarc slings to treat urinary incontinence, using a narrow strip or sling to support the urethra. All of the meshes are made from polypropylene, a petroleum-based plastic which is formed into a mesh material.