Art by Jade R.
Mesh Medical Device News Desk, August 15, 2017 ~ Mesh News Desk is hearing from countless women who are being threatened with no option but to settle their transvaginal mesh case, even when the numbers do not come close to being a reasonable settlement for what she has endured.
Some of that is due to the nature of this litigation, negotiate with the defendant mesh makers to move cases through the court rather than making whole the individual, as a trial is more likely to do, understanding that mesh injuries are often permanent.
MND finds that lawyers threatening to drop their clients may be in violation of their ethical obligations.
SETTLE OR BE DROPPED!
According to a January 10, 2017 order (Ethicon Jan 10 2017), by Judge Joseph Goodwin, who is overseeing the mesh litigation in his federal court in Charleston, WV, more than 100 lawsuits filed against Ethicon have been put on the inactive list.
The reason - the plaintiff (and her representatives) and Ethicon “have agreed to a settlement model with regard to Ethicon.”
This did not necessarily mean that the plaintiff agreed to the settlement. Her law firm might have agreed in principal to settle. Then it is up to her law firm to convince the client to accept the terms the defendant is offering.
Judge Joseph Goodwin
The mesh manufacturers generally demand 95% of the group agree to an amount being offered. If there is agreement, Judge Goodwin said the Plaintiffs and Ethicon “may submit an agreed order of dismissal with prejudice on or before July 1, 2017.” An August ruling extended that deadline to October 1, 2017. Ethicon Doc #4401 here.
That means the case is over and cannot be resubmitted.
But what if the mesh-injured plaintiff doesn't agree to the settlement dollars? After insurance and Medicare is paid, medical bills and any loans, the 5% common benefit fund and a bit withheld for later - some of those checks are pretty lean. MND has even seen settlement checks under $2,000.
The Court will hold a hearing to determine the appropriate action. One of the avenues would be to reinstate the claim to the active docket of the multidistrict litigation (MDL) for good cause.
“Good cause includes, but is not limited to, a plaintiff’s refusal or inability to consummate settlement. Such motion must be accompanied by an affidavit from plaintiff explaining such refusal or inability.”
Judge Goodwin said the counsel for plaintiffs and defendants were supposed to provide quarterly reports to clients as progress was being made in the case.
One plaintiff on the list of 126 plaintiffs, we’ll call her “Suzy” tells MND she received no updates. She did, however, receive calls telling her her only option was to settle for the amount offered or the law firm would drop her case.
She does not want to settle for the amount she is being offered. Suzy is catastrophically injured and will need a lifetime of care due to damage from her Ethicon pelvic mesh implant. A number of clients have also complained that their law firm gave them a June 30th date to accept or reject the settlement offers.
Some plaintiffs tell MND they refused the settlement offer. What then? MND reached out to Suzy's law firm but did not receive a response.
Elizabeth Burch, U GA Law professor
DROP THE CLIENT, SAYS MESH MAKER
It is not widely known, but at least one mesh manufacturer is heavily influencing how plaintiffs' firms treat their clients.
In one confidential settlement agreement, obtained by MND, the push to drop the client is stipulated by the defendant mesh manufacturer.
It says the plaintiffs’ lawyer agrees “to take all necessary steps to disengage and withdraw from the representation of any Claimant who declines a settlement offer under this Master Settlement Agreement or who fails to provide an executed Release.”
This is in direct conflict with the model rules of professional conduct. The right to settle or not remains firmly with the client!
Forcing a lawyer representing the mesh injured runs afoul of the Model Rules of Professional Conduct 1.2 (a), which requires lawyers to abide by their client’s decision.
Elizabeth Burch, a law professor at the University of Georgia tells MND, ”As I’ve written in the past, it’s my opinion that withdrawal provisions are unethical. The limited mesh settlements that I’ve examined all contain mandatory recommendation and withdrawal provisions, which require the attorney to recommend the deal to all of her clients and to then withdraw from those who refuse.”
Professor Burch continues, "Lawyers may withdraw for no reason at all if it won’t have a materially adverse effect on the client’s interests. But in circumstances like these, it becomes very hard to find replacement counsel. Finally, according to rule 5.6(b), lawyers can’t participate in making an agreement that restricts the lawyer’s right to practice as part of settling a client’s case."
DEFENSE SAYS DISENGAGE
As if suggesting the plaintiffs’ lawyer force a settlement even when it may not be in the clients’ best interest, one mesh maker goes even further to dictate how lawyers represent their clients.
On page 42 of one Master Settlement, it admits it cannot tell those lawyers how to practice law, but as part of the agreement it requires law firms to agree, “that they have no present intent to solicit or represent new clients for the purpose of bringing Claims against (the mesh maker) in connection with (the mesh maker's) Mesh Products or (the mesh makers) Mesh Product Injuries.”
The documents dictate plaintiff's firms will agree that they will not actively solicit prospective mesh clients through the media including television, radio or websites, either directly or indirectly.
Professor Howard Erichson, Fordam Law
CONSENT VERSUS CLOSURE
Professor Howard Erichson, at Fordham, has written a good bit on the ethics of agreements like this.
Published in the Cornell Law Review, Consent versus Closure (here), Erichson asks “if a lawyer wishes to withdraw from a client who declines a recommended settlement, may the lawyer terminate the relationship?”
Erichson notes Rule 1.16(b) says yes, the lawyer can, “if the withdrawal will have no material adverse effect on the interests of the client.”
For example, in the Vioxx litigation, an injured client searching for a replacement lawyer wouldn’t find one because all of the firms agreed to get out of Vioxx litigation. Obviously then, it would present a hardship to the client/plaintiff.
But a law firm can withdraw if the client insists on taking an action that the law firm disagrees with, if the action will burden the lawyer financially, and if there is any other good cause for withdrawal, such as a fundamental disagreement.
However, it bears repeating that the client is in charge and it ultimately is his or her decision whether to accept or reject a settlement.
The general rule is that the lawyer may not withdraw because the client refuses to settle.
The client may fire his/her lawyer, but according to Erichman, “Cases overwhelmingly reject the idea that a lawyer may fire a client for declining a settlement against the lawyer’s advice.” P.287
“The lawyer may not burden the client’s ability to make settlement decision by structuring the representation agreement so as to allow the lawyer to withdraw, or to ratchet up the cost of representation, if the client refused an offer of settlement.”
STATUTE OF LIMITATIONS
There is an additional complication if the law firms drops a case.
In some litigation, Mesh News Desk has learned that a complaint was never filed in her case, not even a short form as a placeholder.
Unless there is a tolling agreement, the statute of limitations continues, according to a lawyer handling mesh claims.
Under that circumstance, the injured plaintiff will never be able to find another law firm because her statute of limitations may have expired. ###