New MDL With the Usual Suspects

Jane Akre
January 25, 2018

From whistleblower law

Mesh Medical Device News Desk, January 25, 2018 ~ The MDL system is handling the bulk of transvaginal mesh cases and if you ask many of the 104,000 plaintiffs, they do not feel they are being adequately served.

That is not stopping other mass torts from turning to multidistrict litigation (MDL) to handle mass numbers of injuries. Another is about to begin in Cleveland.

The MDL process - here we go again. Forbes talks about the MDL process and Opioid Litigation.

Location: Cleveland

Time: January 31

Reason : Those gathered will be involved in multidistrict litigation aimed at the nation’s opioid makers and distributors.

They’ve gathered before – Vioxx, Transvaginal mesh, Volkswagens, BP Deepwater Horizon. The usual suspects are the same - the select few trial lawyer firms who represent mass numbers of plaintiffs.

Elizabeth Burch, Professor U GA Law School

In mesh cases, look at and click on your particular mesh maker. In the fine print above "Steering Committee" you will see many law firms who are repeat players in MDL litigation.

Mesh News Desk (MND) has interviewed Elizabeth Burch, a law professor at the University of Georgia School of Law. She is weighing in again her criticism of the MDL system.

She told Forbes these lawyers “form what looks like an oligopoly” referring to the same five lawyers involved in all of the above proceedings.

Opioid litigation will see its MDL gather in Cleveland with five familiar names on the plaintiffs’ steering committee – Mark Lanier’s Texas firm, Seeger Weiss, Motley Rice, Weitz & Luxenberg and Lieff Cabraser. These are among 10 firms that frequently head MDLs.

So what’s the problem?

The MDL system of law was created in 1968 with the intention of streamlining complex litigation, promising to deliver a solution quicker with fewer contrasting opinions in the lower court and streamlining evidence gathering in pre-trial proceedings. See the American Bar Association on MDL here.

In her research, Burch examined 73 MDLs and found that 63% of the available leadership positions were held by the same law firms. The concern is that a conciliatory relationship with defense might squelch dissent in what is essentially an adversarial relationship. In essence, you must be willing to make a deal.

In return for your representation of a large number of plaintiffs, take a percentage of the settlement dollars, but you must agree with defendants to end litigation. Since negotiation and compromise is part of the process, clients usually get in exchange a less than optimal settlement.

Opioid crisis, NPR

Forbes uses as an example, Propulsid, a heartburn drug. Ultimately only 37 plaintiffs qualified for benefits even though there were more than 6,000 plaintiffs. Christopher Seeger, who sits on the steering committee, netted $26.5 million in fees while clients collected $6.2 million.

Writing in his book Collusion: Judicial Discretion vs. Judicial Deception,” Tampa lawyer Brian Donovan writes his clients were shortchanged by a system that shut him out leaving little action on his cases for seven years after they were remanded back to Florida courts to be tried. Meanwhile 19 plaintiff firms have collected $3 billion in fees for negotiating $20 billion in settlements with British Petroleum.

MND has written about the MDL system and how clients are put into a deal even though it might not be in their best interest. Read it here.

Opioid litigation seems to be following the same path. Attorneys general are pursuing the opioid industry as are governments, union pensions and healthcare networks. Purdue Pharma is one of the biggest manufacturers and a settlement is expected.

Judge Dan Polster

The Honorable Dan A. Polster of the US District Court Northern District of Ohio Eastern Division is overseeing the Opiate Litigation.

See first meeting of counsel here.

In the U.S. about 50,000 die as a result of opioid use each year. Doctors, government local governments and hospitals are all part of the problem. But Judge Polster doesn’t want to finger-point. He wants solutions. The judge believe government has the resources to deal with the opioid crisis. But it has not so litigation is the result.

The Vioxx and VW MDL both yielded more than $300 million for participating plaintiff law firms in fees.

During the January 31 hearing, discussions will include the fees private attorneys can gather as part of the settlement process.###

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