**This Story Contains a Late Add Concerning external review specialist Daniel Stack** (see below)
The latest action in pelvic mesh litigation is not taking place in the courtroom, but in motions filed over just how a half-billion dollars in costs and fees will be distributed and to whom.
Ironically, Anderson Law, of Cleveland, Ohio, has done some of the heaviest lifting in the courtroom, but it's the firms that sit on the executive committees of the multidistrict litigation (MDL) who are making the financial decisions on dollar distribution. They will walk away with two-thirds of the fund, if Judge Goodwin allows that to happen. At the same time, the lawyers who have won hundreds of millions of dollars for their mesh-injured clients have had their hours reduced.
It's a money grab that seems, on the surface, to have more to do with who sits at the popular kids' table than productivity for the plaintiffs.
When multidistrict litigation before Judge Joseph Goodwin in Charleston, West Virginia got underway in January 2012, 61 law firms rushed to enter the mesh mass tort. Ultimately, eight law firms became part of the executive fee and cost committee (FCC) of the MDL which swelled to 107,000 defective mesh product liability lawsuits.
Not surprisingly, those firms, and their friends, feel they deserve the bulk of the 5% hold back from every case that’s been settled or tried, expected to grow to $550 million. The monies reimburse firms for expenses and fees for the work done intended to benefit every plaintiff.
It didn’t turn out that way. Some of the firms in line have never even tried a case.
One individual close to the MDL tells MND,
The Honorable Daniel J. Stack, retired
Ben Anderson is challenging the mesh cabal.
On August 9, he filed a Motion for Stay, before the U.S. Court of Appeals for the Fourth District, so that court will stop and take a closer look at the distribution and how much and what kind of work each firm on the receiving end actually produced.
To say there are irregularities is an understatement.
For the past 11 days, there have been 10 filings by attorneys for Anderson and the MDL Fee and Cost Committee (FCC) fighting the appellate review and oversight.
The eight firms issued recommendations on September 13, 2018 – they should receive about two-thirds of the common benefit fund - which would amount to an average hourly rate of $783.02 for the FCC member firms while everyone else would receive $268.22 an hour, according to Anderson’s August 19 filing. (Memorandum in Opposition to Motion to Dismiss, page 5).
Judge Goodwin has agreed with the FCC, writing they were “substantially responsible” for about 75% of the total number of mesh cases and were major contributors of the monies contributed to the common benefit fund. He calls the fee distribution “fair and reasonable.”
Anderson would like a chance to see exactly how the firms contributed and wants the invoices for research, depositions, travel, securing experts and trial preparation. So far, only the committee members have made those expenses transparent internally, not for the 61 firms to review. See who is at the front of the receiving line in this Mesh News Desk, Divvying the Dollars, March 23, 2019 here.
Despite the apparent discrepancies, Judge Goodwin overruled all objections and approved the FCC’s percentage recommendations on July 25. What remains unconventional, is the courts’ requirement that attorneys, in line for common benefit dollars, forfeit all rights to an appellate review.
In an August 2 order, Judge Goodwin writes that by virtue of being involved in the MDL, the law firms, “agreed to the conditions for participation which included a waiver of any right to appeal my final determination as to fee and cost allocations.”
Anderson writes in his August 19, Memo in Opposition to Motion to Dismiss, “The FCC has yet to cite any authorities analyzing the voluntariness of such waivers and holding that such valuable rights can be lost through mere silence or acquiescence.”
“It should go without saying that only a knowing and voluntary waiver of the constitutional right to due process will be enforced by the courts.”
Ben Anderson, of Anderson Law Office (ALO), Cleveland, Ohio, writes he cleared the decks in May 2011 and worked on nothing but mesh cases for more than seven years.
He was co-counsel in one of the earliest cases, the Linda Gross trial in Atlantic City, New Jersey in 2013. Gross was awarded $11.1 million against Ethicon for the implant and injuries caused by her Prolift pelvic organ prolapse mesh implant. Anderson was counsel for the first TVT case in the country (Lewis); the first TVT-Secur case in country (Engleman).
The Prolift case of Dianne Bellew, which he headed, settled four days into the trial in West Virginia in March 2015. Anderson and Adam Slater (Mazie Slater) took the Joan Budke wrongful death case to trial in Missouri in 2015. It settled on the eve of going to the jury.
He cites being appointed by District Judge Goodwin to the Plaintiffs Steering Committee as National Co-lead of the Science and Expert Committee across all TVM litigation. He says he attended virtually all of the Executive Committee meetings and supplied key leadership strategies for science and expert issues involving all mesh manufacturers and their products.
Anderson claims he took deposition cuts from tens of thousands of pages of transcripts of corporate witnesses, experts and treating physicians. Anderson says he was instrumental in educating hundreds of wave attorneys on how to conduct case-specific discovery such as the “hot” internal corporate documents and the heavy versus light weight mesh theory.
Small pore versus large pore mesh, mesh contraction, bridging and scar plate formation, nerve encapsulation and entrapment, and PVDF as a safer alternative to polypropylene, were part of his travels to Europe where he explored Ethicon’s Project Lightning and Project Thunder, relating to Prolene Soft versus Ultrapro, versus PVDF mesh.
Anderson worked with Drs. Klinge, Kreutzer and Iakovlev as they fully developed the pathology of polypropylene degrading, eroding, causing chronic pain, infections, dyspareunia and the need for multiple surgeries.
He secured expert witness Daniel Elliott, M.D. of the Mayo Clinic who had warned the FDA of serious complications his patients had been experiencing.
In his appeal, Anderson objects that he has been allocated one-eighth the amount of Blasingame, Burch, Garrard. Henry Garrard Chair of the fee committee has secured more than $56.6 million for his firm.
Garrard tried one case in West Virginia, Cisson v. C.R. Bard, see MND story here.
The FCC has already fought appeals by Mazie Slater of Roseland, New Jersey, and Kline Specter of Philadelphia, the two firms that have had the most trial wins in pelvic mesh litigation for their clients.
They too had their compensation reduced by the FCC.
While they do not sit on the executive committees, in 2012 an agreement was entered into between representatives of the New Jersey proceedings and the Ethicon MDL in West Virginia. It required the common benefit work done outside of West Virginia be offered full and fair consideration.
Adam Slater of Mazie Slater, says the FCC padded bills and was self-dealing to receive the bulk of the fees. There are allegations that paralegals were billing at $800 an hour and submitting it to the MDL for compensation.
In the end, FCC chair, Henry Garrard’s firm (Blasingame Burch) fee was almost nine times greater than Mazie Slater, Motley Rice was 7.73 times greater, Clark Love was 7.17 times greater, Wagstaff Cartmell was 6.14 times greater, and Aylstock was 4.37 times greater than Mazie Slater. All fees were approved by the FCC.
Those five firms averaged $41 million in fees, while Mazie Slater’s expenses and hours were cut.
Kline Specter have also filed appeals saying the common benefit fee should be reduced from 5% to 2.5% and the remainder returned to the injured women because the mesh settlements have been “puny” compared to jury verdicts.
Kline Specter has won more than $346 million for its clients in pelvic mesh trials, yet the proposal is to allocate 1.07% of the total to Kline Specter.
The Fourth Circuit Appeals Court dismissed the Kline Specter’s petition June 14th when it agreed with the FCC that Kline Specter waived its right to appeal when it accepted common benefit fees, reports Law.com.
The Kline Specter petition for a rehearing was rejected by the Fourth Circuit on July 15.
The Fourth Circuit could grant the FCC’s Motion to Dismiss Anderson's appeal or it could agree to hear the motion. Ultimately, the appellate court could be compelled to shine light into a dark place – just how millions are distributed and for what contribution to the overall litigation effort.
As it now stands, the objectors have not had the opportunity to review the expenditures of FCC law firm members. The Fourth Circuit could open those records.
The Anderson filing has the potential to curtail the first payouts expected in January going to those firms expecting to receive common benefits fees agreed to by Judge Goodwin in July.
Clearing the air on compensation for high stakes litigation can only help shine light into the workings of future MDLs - hernia mesh and opioids - as the same mass tort firms have moved onto become executives of the next big, shiny mass tort. ###