MDND talked to Charleston, WV attorney Harry Bell about how cases are settled with defendants. On the eve of four back-to-back cases against C.R. Bard in West Virginia and the recent settlement of some American Medical System cases, it’s important to understand what could be next. Too many losses and a defendant, in this case a mesh manufacturer, may decide to offer a settlement to the injured. Many plaintiffs say it will never be enough to retrieve a lost life. ~ J. Akre
“Every lawyer who represents their client has the highest obligation to their client to take care of them. It’s the defendant’s choice whether they want to enter into settlement negotiation or not. A defendant will sometimes say they will try every single one of these cases in a mass tort. That’s the message being sent and the Court, such as we see here, is moving things along both in discovery and by setting bellwether trial cases”.
If at some point Ethicon, AMS or any other defendant, would want to enter into settlement negotiation they can do that in a myriad of different ways. One way is to think from a corporate standpoint. That is a smart, overall business decision which is in the best interest of the company. You may find the defense counsel want to keep litigation going as it becomes a “cash cow” for a defense firms billable hours but as defendants recognize, just as plaintiffs do, litigation is very expensive for all sides with uncertainties as to outcomes. Somebody at the corporate level asks “What are we spending and do we have problems?” and “Let’s make a business decision.” These high level discussions involve senior management who are used to dealing with large critical decisions such at some point, a defendants corporate strategy will evolve where it becomes obvious to the litigants and the Courts.
“What do we think it’s going cost are we going win or lose every case? What’s our range? There are big picture things to consider. If at some point they want to resolve the litigation, oftentimes a defendant will utilize different strategies, one is “We want to buy our peace and we’re done totally and want to resolve it and resolve all claims against us.
A proposal is made and negotiations go back and forth and at some point, you may have a large grid format of a settlement agreement. Let’s say a defendant wants to resolve all cases in state and federal court. The way it’s sometimes done in mass torts is the defendant will come up and negotiate with the leadership on the plaintiff’s side and if a successful template is reached, they present it to the MDL Court. Settlement may also depend on a certain percentage of claimants accepting the settlement grid. The actual numbers of plaintiffs willing to settle may be less than needed so it can fail and the parties continue litigation.
Another strategy defendants sometimes employ is look at who is suing them and look at the universe of cases and say “I’m going to settle some of those selectively and others, we will wear out at trial in a “scorched earth” policy.” Depending upon you may be in a venue known for high verdicts, or in an area that’s conservative in its jury findings can also affect settlement strategy. As a defendant, you may turn around and settle cases that present a high exposure. Conversely, the defendant can say we are going to try cases if they are getting feedback that it is a conservative jury area. There are numerous other strategies defendants can employ to get out of this litigation and eventually, all cases will be resolved either by trial, settlement or dismissal. Much like many complex things in life, expect the process to take awhile. There are excellent teams of attorneys, on all sides, with wise, fair and very astute Judges involved. People should have confidence in our Judicial system to assist them in resolving matters in a Court of record.”
MDND: Does a law firm have to get approval before a settlement is agreed to on your behalf?
“Absolutely, the sign off involves approvals. If you have other mass torts what happens, mesh aside, let’s say pharmaceutical products, how long has the plaintiff suffered from a medical condition? Then there is a grid worked out. Here is the proposal subjected to 80 plus filing claims. Where do you fall in the grid?”
MDND: Like the Kugel Mesh settlement that had tiers of injury? Some say they were strong armed into settling for very little money.
“A lawyer’s job is to tell the client what they need to hear, not what they want to hear. Oftentimes clients are not the best to determine what’s in their best interest because of their emotional investment in the issue. To the extent if a client was hesitating and wanted to do something not in their best interest, the lawyer has options. Sometimes clients use their hesitation to extract money by getting a change in the fee agreement. You might have one lawyer end up giving away his fees to get them to sign because they thought it was in their best interest to sign. Those are rare as certainly clients would be upset if the attorney suggested the agreement should be changed for the attorney to get more. Honor your agreement is the best policy for all.”
MDND: Can Ethicon say I’m going to settle the claims of the XYZ law firm alone?
“Yes, they can do that if they want to. A defendant may say We’re going to offer you x amount of dollars for your clients only were not going to offer to anyone else. That lawyer has an obligation to confer to his clients and if that lawyer is appointed in a leadership position, he or she has an obligation to inform the Court at some point. As an Attorney, I have an obligation to advise my clients. As a practical matter if you have things like that and the Court sees the defendant picking off and trying to get people to settle to get leaders off the leadership positions – that’s happened before in the mass tort world – The Court will have to appoint new leadership to move the litigation along. I would suspect that Judges would not be real happy at defendants who try that tactic to “gut” the plaintiff leadership structure, but that could be a strategy a defendant may employ.”
MDND: If I’m a corporation, I’m going to pick the less reputable attorneys to settle. Is that a strategy?
“The bottom line for clients is choose your representation wisely. Ask – Is it in writing you must approve a settlement? Ask what is their experience; why is this in my best interest; how many cases have you tried; have all the depositions been taken? There are a lot of questions before you. If my lawyer says she’s taken over 70 depositions over 2-3 years and has reviewed 34 million pages of documentation and has her own experts retained and she recommends you settle, you’ll feel better than hearing that from a lawyer who says I’ve not participated in any depositions and not looked at any expert reports.
Just be sure you understand what is at stake. I certainly am of the opinion there is a tremendous amount of experience and resources devoted by many plaintiff’s counsel in mesh litigation and clients are being very well represented.”