Divvying the Dollars- Common Benefit Firm Winners and Objectors

Jane Akre
March 23, 2019

Mesh Medical Device News Desk, March 23, 2019~ While more than $7 billion has gone to settle pelvic mesh cases, some law firms believe their contributions to the common benefit that all litigators share in this MDL, are being undercut.  

Two of the most prolific pelvic mesh litigation firms are among those that claim their hours have been cut while the executive committee members are the most handsomely rewarded, even if they tried few or no cases.

The appeals are on. The answer can mean millions to an individual law firm.

There is no easy way to talk about money in litigation.

Plaintiffs feel they didn’t settle for enough. In the case of pelvic mesh, many did not. Sometimes lawyers cannot bring a case to a close and drop the client, losing out on any reimbursement of the firm’s costs and fees.

Then there is the other side of the coin - the millions of dollars in proceeds from pelvic mesh litigation and settlements waiting to be divided.

Common Benefit Fund

Plaintiffs' attorneys, Charleston WV

Lawyers spend years devoting themselves almost exclusively to an MDL. It can be grueling, exhaustive work that requires years of dedication, for some law firms.

In fairness,  while there have been a few standout firms that had aggressively led discovery and depositions, the majority bought and sold cases and never saw the inside of a pelvic mesh courtroom.

Depositions and discovery, legal theories and litigation are generally generated by the top firms. Yet in this MDL when it comes to common benefit dollars, they are seeing the least for their efforts while some firms who never tried a case, are reaping millions in fees.

Pelvic mesh multidistrict litigation (MDL) was formed in Charleston, West Virginia in early 2012 naming seven mesh manufacturers. It eventually grew to consolidate 104,836 plaintiffs naming seven mesh maker defendants.

Eventually settlements and verdicts would total $7 billion and that number is still growing. Meanwhile tens of thousands of cases have been settled or dropped.

The Common Benefit Fund (CBF) is pooled monies - representing 5% of any settlement or verdict -  meant to compensate attorneys for the cost outlay and the work performed for the common benefit of all of the plaintiffs. It is expected to exceed $550 million.

What did the firms do?

In all, more than 199 million pages have been produced across the pelvic mesh MDL including more than 200 individual and 30 corporate depositions. Key opinion leader physicians were deposed as were medical, scientific and biomaterials experts. The theories related to defective design of the TVM (transvaginal mesh) devices required knowledge of anatomy, medicine, scientific principles, and literature surrounding synthetic and biologic surgical medical devices.

Many of the plaintiffs’ experts were in Europe necessitating travel and expenses there. Costs also including the housing of discovery to make it searchable and accessible. Plaintiffs' firms had to prepare bellwether and other cases for trial and see them through to a verdict.

There were 52 general plaintiffs’ experts. Plaintiffs’ firms handled post-verdict motions, directed verdicts and appeals.

In the case of pelvic mesh, in all, 94 law firms submitted more than 900,000 hours of time for common benefit consideration along with their hourly rate, to bring their compensation/reimbursements into the millions.

The Deciders

The Honorable Daniel J. Stack, retired

In January 2016, the pretrial order establishing the criteria for applying to the MDL fund was established. The order appointed nine individuals as the Common Benefit Fee and Cost Committee.  The Honorable Daniel J. Stack, retired, was appointed as the External Review specialist.

The party of nine includes Renee Baggett, Henry Garrard- Chair, Yvonne Flaherty, Riley Burnett, Carl Frankovitch, Thomas Cartmell, Clayton Clark, Joseph Rice, and William Mckee.

Sixty-one attorneys from law firms across the country make up the Plaintiffs’ Steering Committee (PSC) who worked to develop litigation strategy and theories of liability, depose experts and “absorb massive litigation costs.”

Those in leadership positions also find themselves on the receiving end of some of the largest dollar distributions.

Distributing the Dollars

PreTrial Order #332 issued March 12, outlines how the money will be distributed.

Of the 94 firms who submitted more than 900,000 hours of time for common benefit consideration, the FCC has reduced the recognized hours to 679,191.20.  The FCC has communicated to each applicant firm whether their hours will be recognized or reduced.

Eight firms presented an argument to the FCC’s final Written Recommendation while 24 firms objected the FCC’s Preliminary Written Recommendation. Twenty-seven firms met with the FCC in-person to further discuss their hours.

Of the eight firms, many did work primarily in the State court of New Jersey and based their objection in part on an agreement entered between MDL leadership and certain New Jersey counsel.

The objectors wanted all of their time to be considered common benefit because they felt the FCC was not accurately reflecting the value of their work, especially considering the successful court outcomes in Ethicon litigation.

The Objectors

Ben Anderson, Anderson Law

Among the four firms that continue to object to the FCC’s Final Written Recommendation include firms that did not have members on the executive committees of the MDL. They include:

Anderson Law Offices – Ben Anderson was in the courtroom in Budke v Ethicon, Bellew v Ethicon, Lewis v. Ethicon, in Charleston, WV.  Judge Daniel Stack did agree to increase of 0.1142858%

Bernstein Liebhard – Judge Stack agreed to an increase of 0.1285715%.

Kline & Specter – The Philadelphia firm has had a series of successful outcomes for its plaintiffs in Ethicon litigation of more than $146 million.  Judge Stack recommended no changes in the amount allocated for common benefit fees.

Adam Slater, Mazie Slater Katz Freeman

Mazie Slater Katz & Freeman – This New Jersey firm has also conducted a series of plaintiff won chases against Ethicon. They argue the early cases tried in New Jersey (Linda Gross v. Ethicon), as well as one expert developed by Mr. Slater (Anne Weber) were almost solely responsible for the success of all of the MDLs.  Yet Judge Stack recommended no change to the amount allocated for common benefit fees.

The Honorable Judge Stack writes that not all hours are equal, and that time to review a document should be compensated at a different rate than a deposition.  He adds citing Diet Drugs, 2003 WL 2003 WL 21641958 at *10-*11.

    “with so much money at stake and so much time invested by skilled attorneys on valuable common benefit work, it is not surprising that disputes exist concerning the proper method and dollar amount of the individual allocations. We emphasize, however, that the allocation of fees is not an exact science.”

Henry Garrard had criticized Kline & Specters' noting the settlements were "puny."  The Philadelphia law firm argued that the 5% common benefit fund should be partially returned to plaintiffs.  Garrard called Kline & Specter’s criticisms “blatant hypocrisy,” reports The Legal Intelligencer.

Those At The Top  

H. Garrard leaving federal court Charleston WV, July 2013

Again those in executive and fee committees appear to be the rainmakers for their law firms. They include:

Blasingame, Burch, Garrard & Ashley – Henry Garrard, firm partner helped start the pelvic mesh litigation and secured high ranking spots in the Plaintiffs’ Steering Committee for all TVM MDLs. He heads the fee committee that recommends an allocation of $56.6 million plus reimbursement of the $350,000 in assessments and $9.5 million in expenses.

Motley Rice – was very active in the committee appointments from the beginning with patner Fred Thompson on the Steering and Executive Committees.  The Fee Committee recommends an allocation of $49 million, plus reimbursement of the firms $350,000 and expenses in the $2.9 million range.

Clark, Love Hutson – Clayton Clark was co-lead counsel for Boston Scientific and is a member of the executive committee and the Plaintiffs’ Steering Committee. The Fee Committee recommends an allocation of $45.5 million, plus reimbursement of $350,000 in assessments and reimbursement of $4.2 million in expenses.

Wagstaff & Cartmell – Early on the firm worked in all TVM litigation with Tom Cartmell on the Executive, and Plaintiffs’ Steering Committees.  The Fee Committee recommends an allocation of $38.5 million plus reimbursement of the firms $350,000 and $1.6 million in expenses reimbursed.

Aylstock, Witkin, Kries & Overholtz – the fee committee recommends an allocation of $27 million plus reimbursement ($350,000 assessment) and $1.1 million in expenses.

While the objectors were reimbursed:

Kline & Specter – Partner Lee Balefsky is a member of the Plaintiffs’ Steering committee. The firm tried most of its cases in Pennsylvania State Court and won in excess of $140 million for the plaintiffs. The Fee Committee recognized an allocation of $3.7 million, plus reimbursement of the firms $350,000 in assessments and reimbursement of $667 thousand in expenses.

Lee Balefsky, Kline Specter

Mazie Slater Katz & Freeman – In 2013, the New Jersey firm broke new ground by successfully trying Linda Gross v. Ethicon with an $11.1 million verdict. It has had a series of successful verdicts in New Jersey since then.  The fee committee recommends an allocation of $6 million and reimbursement of $1.8 million in expenses.

Anderson Law - $7.2 million in fees plus reimbursement of assessments ($350,000) and expenses of $666,993.

Judge Daniel Stack writes, “Arguments that there were different “rules” for the FCC members and other applicant firms are simply without merit and factually incorrect.”

According to PTO #332, all objections need to be filed before March 26. ###


Pretrial Order #332,

MND, February 5, 2019, Judge Gives Green Light of Millions to Lawyers in Pelvic Mesh Litigation

MND, February 22, 2019, Common Benefit Fee of 5%- Did You Pay it?

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