Garrard Responds to the Four MDL Fee Objectors
In a 77-page response to be filed Tuesday in the pelvic mesh multidistrict litigation (So District of WV, Ethicon MDL- Docket #7816), Henry Garrard, who heads the executive committee in this MDL, objects to the four law firms who say they are not being adequately recognized for their work in this litigation and are being shorted millions of dollars of the fees collected from pelvic mesh settlements and jury verdicts, despite conducting the most high-profile trials.
Image: Garrard leaving federal court Charleston WV, July 2013
In a firm but constrained style, Garrard strenuously objects to airing of “dirty laundry” by two law firms who allege bill padding and preferential treatment. (See So District WV, MDL 2327, filing #7816, Pacer required).
Mazie Slater of New Jersey and Kline Specter of Philadelphia claim those firms who have cozied up to the executive committee of the pelvic mesh MDL in Charleston, WV are seeing the highest dollar reward while the firms, that have done the most heavy lifting – collecting evidence, conducting depositions and taking cases to trial successfully - are having their hours and rates cut by the MDL executive committee.
Two other objectors are New York firm Bernstein Liebhard and Anderson Law firm of Cleveland, Ohio. The objectors are seeking an independent review of the allocation by the Fees and Cost Committee (FCC) and have each submitted their objections to the court.
Each settlement and verdict is assessed 5% to go to a common benefit which allows lawyers to share in discovery without reinventing the wheel for each of the 104,000 plaintiffs who filed product liability cases against seven mesh makers in the MDL. That money is to reimburse to fees and costs advanced by the firms.
That’s how it was to work in theory.
In reality, the very few bellwether trials conducted failed to set the “value” of a pelvic mesh case for settlement purposes. All except a few of the 94 law firms involved in the MDL, never saw the inside of a courtroom with a pelvic mesh trial. Instead, they shuffled paperwork lining each plaintiff up for a settlement taking 40% for their effort.
Now, all want to share in the enormous and growing pot of money which is valued at $350 million resulting from $7.25 billion in pelvic mesh settlements and verdicts.
Garrard, of Blasingame Garrard, Athens, GA, who chairs the Fee and Cost Committee (FCC) calls the allocation process fair and transparent and objects to the public airing of “dirty laundry.”
“The sort of caustic rhetoric from the remaining objectors directed at the committee, its members and the Court-appointed External Review Specialist, among others, is unfortunate,” says Garrard in in response to the four objecting law firms challenging the Common Benefit Fee and Cost Committee (FCC) made of members of eight law firms, and External Review Specialist of the MDL.
Airing their “dirty laundry” says Garrard, serves no purpose.
Among those accusations - Pensacola, Florida lawyer, Bryan Aylstock reportedly refused to allow his partner Renee Baggett to sign the fee committees written recommendation unless his firm received more in fees, about $10 million more.
Mazie Slater calls it a “disturbing” and “glaring example of self-dealing.” Garrard calls the recitation false.
External Review Specialist, retired Judge Daniel Stack has accused law firm, Motley Rice, of padding its time with “thousands of phantom hours” including time to re-review documents already reviewed.
Kline Specter has been highly critical of the firms that took on more defective product cases than they could ever handle and as a result, settled for “puny” amounts when compared to multimillion dollar verdicts the Philadelphia firm has achieved.
Settlement averages are in the range of $40,000 for an Ethicon case, but are as low as $500 to zero after legal expenses and any medical liens are cleared. Mazie Slater obtained the largest settlement of $5 million in the Wicker case, which never went to trial.
“The leaders in this litigation did the worst possible thing to the detriment of all plaintiff mesh victims and their attorneys: they settled their inventories way too cheaply, making it difficult for other attorneys to settle their cases reasonably,” attorney Shanin Specter said in a November 2018 filing.
“The FCC will simply state that the attacks on the FCC firms and their work are unfounded.” Garrard writes. He points to 90 of the 94 firms agreeing with the allocation process.
But it was not all smooth sailing.
Of the 94 firms, 27 chose to appear in person to appeal to the FCC. That resulted in changes to allocated monies to 17 firms. All but one of those were resolved. Eight firms objected to the FCC’s Final Written Recommendation. After a number of back and forth objections, an additional $10.9 million was reallocated.
That left just four dissatisfied.
Mazie Slater conducted the bulk of its cases against Ethicon (Johnson & Johnson) and formed the Gynecare Work Group to fund the New Jersey Ethicon litigation which focused on the Prolift pelvic mesh to treat pelvic organ prolapse. Fifteen firms paid into the group and Adam Slater says that formed the foundational work for all Ethicon litigation.
Garrard says the FCC did consider pre-MDL time for the New Jersey firm and while the Prolift work was important, most of the Ethicon MDL trials focused on SUI sling products such as TVT-Retropubic, Obturator, TVT-Secur, TVT-Abbrevo and Exact.
The MDL leadership had agreed to work cooperatively with firms outside of the West Virginia MDL, such as New Jersey and Philadelphia but no New Jersey firm was ever appointed to the Fee and Cost Committee, even though reportedly there was a request to do so.
Mazie Slater points to the eight firms on the FCC committee which got an average award of more than $27 million and which comprises 62.5% of the fund.
Garrard says the eight firms of the FCC were collectively responsible for almost 300,000 recognized common benefit hours and were responsible for resolving more than 75% of cases filed in the MDL while taking the largest financial risk.
Referring to Kline Specter and Mazie Slater, Garrard says the groundwork by the two firms was provided for their plaintiffs’ cases in New Jersey and Philadelphia and not for the common good. He points to the use of Prolift mesh expert Dr. Anne Weber who Mazie Slater reserved to be its expert in Prolift cases and not shared with the MDL until recently.
Every firm was evaluated by the same process, writes Garrard, who notes that the review process took two years.
Garrard complains the objector’s submissions of time and expenses were in direct violation of the Court’s express instructions and referring to Mazie Slater submissions as “largely indecipherable,” full of “dismal record keeping” and “improperly documented time,” so vague as to be meaningless.
Judge Goodwin has the option to review the records to credit Mazie Slater for many submissions.
Mazie Slater writes there is no more example of disparate treatment than in the hourly fees awarded to the FCC members.
According to Law.com the FCC cut 455 of Bernstein Liebhard’s 4,407 billable hours from final allocation. It wanted $3.2 million. Its hourly fee was $352 while Blasingame Burch had a fee award of $847 an hour.
Mazie Slater was awarded an average hourly rate of $202 for 29,752 hours submitted and $309 an hour for more than 19-thousand hours.
In contract, the average weighted hourly rate going to FCC firms was $730 /hr. That includes $728/hr. going to a West Virginia firm that took no depositions and tried no cases.
Mazie Slater was eventually awarded $6.2 million.
In a 26-page objection, filed in the MDL March 26, Adam Slater points to five law firms that will average $41 million in fees, while Mazie Slater’s expenses and hours were cut by the Fees and Cost Committee (FCC) whose members are at the top of the compensation list.
Ben Anderson who conducted 60 depositions, is a member of a one-person law firm.
Garrard argues his cannot be compared to the 21-person firm of Aylstock or 47 lawyers with Motley Rice in terms of compensation.
Kline Specter has conducted more pelvic mesh cases against Ethicon than any other filed in the Philadelphia Court of Common Pleas, which has resulted in $146 million in verdicts for its clients but Garrard says the firm has been “a consumer-rather than a producer - of common benefit work product generated by others who led the Ethicon litigation.”
Its trial success was largely the result of common benefit work done by the MDL that it “now seeks to disparage,” Garrard insists.
Ultimately the final word rests with the man overseeing the largest MDL ever consolidated in one court - Judge Joseph Goodwin. The common benefit fees are based on $7.25 billion in pelvic mesh settlements so far. As Judge Goodwin encourages more firms to settle with mesh makers that final number is expected to reach $11 billion, raising the common benefit fee fund to $550 million when the pelvic mesh MDL is finally closed.
Garrard wants Judge Goodwin to give final approval to the Final Written Recommendation of the FCC.
Judge Goodwin will consider the allocation matters and deem whether additional hours and dollars should be reallocated.
He might also weigh in on the airing of dirty laundry and the irrefutable fact that those firms who claim they’re not being recognized for their work by this MDL have also delivered the highest dollar and most jury verdicts so far among thousands of mesh-injured plaintiffs. ###
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