A Mesh News Desk Exclusive, October 10, 2013 ~ A hearing in federal court in West Virginia, Thursday, will determine whether American Medical Systems (AMS) can pursue allegations of what it calls a “scheme” to create fraudulent transvaginal mesh removal records for profit and to stack the deck against the mesh maker in ongoing federal litigation.
The mesh manufacturer has filed subpoenas for discovery from four who were allegedly involved – MedStar Funding and its owner attorney, Dan Christensen, One Point Orthopedics & Neurological Group and its associate, Otto Fisher.
“It seeks discovery related to apparent attempt to procure tainted medical records through financial arrangements with physicians, and to possible schemes to “manufacture” mesh removal/revision cases where treating physicians did not recommend such surgeries.”
In court documents, AMS alleges it was tipped off to the plan by Southern California urogynecologist, Dr. Andrew Cassidenti, an occasional consultant to AMS. The doctor reportedly called AMS August 30, to report he had been solicited to do vaginal mesh removals.
The inquiry came from Otto Fisher, who allegedly told Dr. Cassidenti he was a Florida-based “entrepreneur.” According to the doctor’s affidavit, Fisher solicited the surgeon to perform mesh removals in Southern California and Las Vegas at outpatient surgery centers. In return, the doctor would be paid $2,500 per removal, no matter how long it took and “whether mesh was found or not.”
It was the following alleged statement that prompted the subpoenas.
Dr. Cassidenti says he was told “There is a federal judge in West Virginia that needs to see key phrases in the operative report like ‘defective mesh,’ ‘bunched-up mesh,’ and ‘mesh erosions.’ “
When the doctor inquired as to whether he was being told what to put in a medical report, Fisher allegedly said, “No, but it’s just a game and we have to play it.”
According to court documents, Dr. Cassidenti was then referred to Dan Christensen of MedStar Funding. MedStar is an Austin, Texas-based company that provides cash to medical providers to pay for their services when patients are unable to pay because a liability claim against a third party is pending in court. The company utilizes a national network of brokers and consultants to provide cash with “quick turnaround” and “high commissions,” according to its website.
If the plaintiff loses their case, funding companies generally do not recover their investment.
Dr. Cassidenti says he told Christensen he was troubled having lawyers dictate the language to include in an operative report and to the characterization as “just a game.” The doctor said he was then told by the Christensen “You would not be helping the patients if you fix them but don’t help them win their mesh lawsuits.”
After some conversation, the two concluded Dr. Cassidenti would not be a “good fit” for the program.
In his affidavit, issued September 26, Dr. Cassidenti wrote “I fear plaintiff attorneys may be using this scheme to get what they feel is needed testimony from surgeons to win their mesh lawsuits. I do not believe that pelvic mesh devices for the treatment of stress urinary incontinence or pelvic organ prolapse are defective and I strongly support their continued use.”
An attorney for AMS, Barbara Binis of Reed Smith of Philadelphia told Mesh News Desk the “motion speaks for itself.”
AMS wants to discover whether any plaintiff’s medical records have resulted from any “deal” to raise the value of their litigation claims, which it claims is critical to their defense. That could include documents referencing mesh revision or excision surgery for any other woman who has filed a lawsuit against AMS over its transvaginal mesh used to treat stress urinary incontinence or pelvic organ prolapse, consolidated in the U.S. District Court for the Southern District of West Virginia (MDL 2325).
At the present time there are 10,633 defective product and failure-to-warn cases filed in that federal court that name AMS and its mesh products. .
Bellwether Case Records
AMS also wants any and all documents on the mesh revision or excision surgery of Lisa Marie Fontes, Deborah Jilovec, Joann Serrano and/or Mary Weiler, the four women who are the plaintiffs in the upcoming AMS trials in federal court in Charleston.
The four women have been selected as bellwether cases that represent the class of injured. AMS asks for all documents identifying the name of the physician who the women were referred to their operative report.
AMS filed a motion for the records from One Point Orthopedic and Neurosurgical Group Inc. The company lists its president as Gina Marie Fiorese, seen here in a Facebook page with a man identified as Otto Fisher. Mr. Fisher did not get back to Mesh News Desk for comment by the time of publishing. The company’s status is “inactive” according to the Florida Division of Corporations.
Christensen’s attorney Alex Macia of Spilman Thomas & Battle, PLLC of Charleston, WV send Mesh News Desk his client’s Motion to Quash the subpoena on the basis it is too broad and would require Christensen to review hundreds of thousands of documents for references to transvaginal mesh claimants.
“Let us be clear: The allegations leveled by the defendant, American Medical Systems, Inc. should be investigated, but in a rational and deliberate fashion. The scope of the investigation, however, should not be allowed to spiral out of control based on unfounded speculation.”
MedStar has reportedly purchased 10 accounts from Otto Fisher’s company that pertain to patients with claims filed in transvaginal mesh multidistrict litigation.
The Motion says MedStar is not a company that would fabricate bills to increase damages in multidistrict litigation and the “scheme” alleged by AMS would at most apply to the 10 cases before the MDL. It asks the AMS subpoena be quashed or dramatically limited to the approximately 10 cases before the Court.
Attorney Macia adds Dr. Cassidenti is not a “disinterested person” but a paid consultant to AMS who received benefits “both directly and indirectly” from the company.
AMS is one of six mesh makers that altogether face more than 30,000 defective product and failure-to-warn claims consolidated in multidistrict litigation in Charleston, West Virginia, as well as thousands of claims filed in state courts around the country.
Endo Health purchased American Health Systems in 2011 for $2.9 billion and with it some of its debt, including the pending product liability lawsuits.
Motions to Quash and for Protective Order
Pending before the court are Plaintiffs ’ Motion to Quash Third-Party Subpoenas to Medstar Funding, One Point Orthopedic and Neurosurgical Group and Otto Fisher, (ECF No. 870), Plaintiffs’ Motion to Quash Third-Party Subpoenas to Medstar Funding, One Point Orthopedic and Neurosurgical Group and Otto Fisher, (ECF No. 872), and Motion to Quash Subpoenas Issued to Nonparties and Motion for Protective Order, (ECF No. 879).
The hearing is scheduled for Thursday, October 10 at 10:30 a.m. at the Sidney L. Christie Federal Building and Courthouse in Huntington, West Virginia. # *Editors Note – Pretrial Order #85 reset that hearing for 2:30 P.M.
AMS # 892 – Defendants Omnibus Response to Motions to Quash Subpoenas Here
AMS #908 – Reply Memorandum of Law in Support of Motion to Quash Subpoenas Issued to Nonparties and Motion for Protective Order – Here
AMS #83 – Hearing on Motions to Quash and Protective Order – Here