By now most people have heard of pelvic mesh. They would probably say they've heard too much, from late-night TV ads. However, they don’t know the full story.
They don’t know how women were sold on the new plastic implants made of polypropylene (PP), the same PP used in indoor-outdoor carpet, and implanted through a slice in the vagina (transvaginally) to shore up the urethra or bladder to treat incontinence or to support sagging pelvic organs.
Injured women reported chronic pain and infection, nerve injuries, and mesh migration into organs. Some killed themselves from the pain and many to this day, cannot get out of bed. Others live on opioids. Still many women who can afford to, have had the implanted device removed, to the extent it can be without doing more damage. Pelvic mesh is intended to be a permanent device.
Ultimately in the U.S. topped 107,000 cases against seven manufacturers filed in one court in West Virginia. It ended up being the second-largest MDL (multidistrict litigation) just behind asbestos and has yielded about $7B in settlements and verdicts.
Lawyers loved this litigation figuring they could rattle some chains at Johnson & Johnson, Boston Scientific, and C.R. Bard, among four other makers, and the defendant companies would just hand over buckets of money. But it did not happen that way. Bellwether cases were chosen and tried. The defendant mesh makers lost the bulk of the cases which resulted in jury verdicts for the injured women ranging from $1.1M to $100M.
When it was time to receive their compensation, whether from a jury verdict or settlement, most women saw 5% come off the top of their money, going something called the Common Benefit Fund (CBF).
The CBF is intended to compensate those lawyers who did the heavy lifting, working up the cases for trial or settlement, including, travel, depositions, and document research. Ultimately, the few firms would streamline discovery for everyone, making the litigation trial-ready. The CBF is intended to reimburse the heavy-lifters for their cost outlays making the cases trial-ready, even though some of the 94 firms involved in mesh litigation, did none of the discovery.
Most of the women were hopeful that their settlements would be more in line with jury verdicts which ranged from $1.1 M to $100M, with the average jury award just under $10M.
Instead, settlements for mesh-injured women averaged $40,000 before any legal fees were taken out, medical liens, or repayment of Medicare and Medicaid. If she’s lucky she gets half. Some women walked away with nothing. In many cases, the firms walked away with more money than the injured woman.
Most women contacting Mesh News Desk (MND) say they didn’t question the 5%.
She and her husband filed a lawsuit in 2012 against both Boston Scientific and Ethicon over her two implanted pelvic meshes. The Florida couple signed a retainer agreement with her Texas-based law firm. Eight years later upon settling, the law firm took 2% of her money off the top, telling the couple it was a "court-ordered" fee.
Judge Joseph Goodwin, who heads the pelvic mesh litigation from his federal court in Charleston, West Virginia, never specified who was to pay the 5%, only that every settlement or verdict was expected to contribute to the CBF.
Betty hired a local lawyer. She wanted the money reimbursed. She remembered a story on Mesh News Desk (MND) that the plaintiff didn’t have to pay it. And she had never been told by her lawyer she was expected to pay it.
They cited Judge Goodwin’s own words, a docket citation filed August 26, 2013, in the Boston Scientific MDL 2326, PTO #52 said:
“Nothing in this Agreed Order is intended to increase the attorneys’ fee paid by a client, nor to in any way impair the attorney/client relationship or any contingency fee contact deemed lawful by the attorneys’ respective state bar rules and/or state court orders.”
In other words, they were overcharged and were entitled to a refund. In addition, the overcharging violates the Florida Civil Theft Act, which provides triple the actual damages sustained. Betty’s lawyer gave them 30 days to pay up. They did.
Betty tells MND,
“My goal was to pursue this legally because I could if we ended up in court there would be a precedence for other women. But they settled instead. I’m sure they didn’t want it going into the court record what was happening.”
BOTTOM LINE – Betty, her husband, and lawyer recovered not only her 2%, which was a nice small four-figure amount, but they also recovered her lawyer’s legal fees!
Most of the hundreds, if not thousands of women who have contacted MND over the years, say they paid the 5% CBF and did not question it. It just came off the top.
One Philadelphia law firm, left out of millions in CBF by the MDL executive committee, called the fees “excessive and unreasonable given the outcome of this litigation.”
So what should you do?
Lawyers in the pelvic mesh litigation were already charging 40% to settle cases (with the exception of New Jersey where a lawyer’s fee tops off at 33.3%), a hefty slice of any recovery, so to bill again for fees was akin to double billing.
One anonymous mesh litigation lawyer told MND:
“CBF should be broken into 2 parts- Fees and Cost. Fees should ALWAYS come from the attorneys’ fee. If an attorney is billing this to the client they should be sued. That is absolutely unethical. Cost is allowed to be taken from the client. These are the cost the MDL leadership has spent, such as flying to see the judge, paying for expert reports (these are very expensive, even before going to trial), paying for hosting documents, and document review platforms. Most firms will bill cost to the client as is allowed. Our rule of thumb is that we will eat the cost in the event billing cost to the client would result in us receiving more money than them (this is very rare, but can happen in cases with low/nuisance value where we have also spent a lot of records acquisition, etc).”
The question had come up in the high profile Vioxx MDL, Judge Eldon E. Fallon wrote in, “Common Benefit Fees in Multidistrict Litigation”:
“In an MDL the claimant doesn’t pay the common benefit fee, the primary attorney pays it.” Judge Fallon continues, “In class actions, the beneficiary of the common benefit work is the claimant; in MDLs the beneficiary is the primary attorney (the attorney who has the representation agreement with the client). For this reason, in MDL’s the common benefit fee is extracted from the fee of the primary attorney and not the claimant as is the case with class actions. Thus in MDL’s the claimant does not pay the common benefit fee; the primary attorney who is the beneficiary of the common benefit work pays it.” Fallon, page 11
In Vioxx, the Common Benefit Fee was 6.5% to be extracted from the 32% fee of the primary counsel.
The Common Benefit Fund in this pelvic mesh litigation in West Virginia is expected to swell to as much as $550M, to be divided among the 94 firms, The majority of which have never seen the inside of a pelvic mesh courtroom. Instead they bought and sold cases, like a gambler on steroids, for a slice of the 40% action.
The CBF is already being distributed. For those watching the numbers, law firms Blasingame Garrard ($56.6 million), Motley Rice ($49 million), and Clayton Clark Hutson ($45.5 million) were the winners in the pelvic mesh fee allocation, among others.
Here are the docket entries on the CBF.
Boston Scientific, MDL 2326, PTO #52