Mesh Medical Device News Desk, February 22, 2019 ~ Have you received a pelvic mesh settlement? Are you about to? Please understand there is a fee involved that you may not have to fully pay.
Common Benefit Fee (CBF)
A lawyer recently told me:
“I wanted to make sure that you realized that common benefits assessments don’t come out of the plaintiffs’ recovery, they come out of the fee from the representing attorney.”
He said since the multidistrict (MDL) leadership is doing all of the work, they need to be reimbursed.
There were so many pelvic mesh cases, they were consolidated into multidistrict litigation, similar to a class action, to be prepared for trial. At one time there were more than 104,000 pelvic mesh cases filed against seven manufacturers.
When a woman receives a settlement from a mesh manufacturer the lawyer generally takes 40% for his effort while she receives the remaining 60% minus any medical liens, Medicaid, Medicare, loans etc.
Which side should pay that 5% is the question.
Why 5%
Prolift partial explant from Gross v. Ethicon trial
Like all MDLs or mass torts, there is a fee that the lawyers who did the initial discovery are reimbursed.
To prepare for pelvic mesh trials, they flew to Europe to interview and depose the doctors who did the initial research on pelvic mesh and they contracted experts and had to pay for their reports. They traveled a great bit to put together the research that would lay the groundwork for the narrative that would be told to jurors in the mesh trials. They paid out of their pocket.
The 5% comes out of every mesh settlement or recovery at trial so the attorneys who did the initial work can be reimbursed for the dollars they advanced. (Should that include a private jet to Paris with their wife? Probably not.)
I tell him that my experience is different, or at least the experience of the women I talk to. I’m hearing from MND readers, that the 5% common benefit fee came out of their 60% of the settlement dollars!
So Who Pays?
So the question remains, who pays the 5% – the plaintiff or her lawyer?
The lawyer in question continues:
“CBF should be broken into 2 parts- Fee and Cost. Fee 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 costs 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 costs to the client as it is allowed. Our rule of thumb is that we will eat 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).”
In other words, lawyers pay a fee to the common benefit fund to reimburse the initial researchers. I ask again, are you sure? Many women end up paying the 5% out of their portion of the settlement.
He continues:
“Absolutely, the CBFee (not cost – which is usually around 3% depending on the litigation) comes from the attorney’s 40%. That’s a huge reason the fee for mass torts is 40% and not 33%, because assessments come out too. Judge Goodwin shouldn’t have to specify, any licensed attorney should know that! It’s similar to if I need local counsel in X state to file the case for me, their fee comes out of my portion.
There honestly needs to be a MDL bar, just like there is a patent bar.”
So Who Paid the 5% in your case?
Bottom line – Your attorney should pay at least 3% of that 5% to reimburse other attorneys. You may be on the hook for the costs your law firm has incurred such as plane trips, hotels, flying to see the judge.
The only exception to the above might be in your retainer agreement with your law firm. Does it specify that you, the plaintiff, is supposed to pay the entire 5%?
If this is not how yours turned out can you contact me? I’m doing some research in preparation for a story. Thank you in advance. Names need not be used for any eventual story but let’s talk!
Please contact jeakre@gmail.com Or 904-613-2828.
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yes they took fee from settlement
Doris- what portion of the fee came from your settlement dollars? All 5%?
I paid it
My deposition was cancelled in May 2018. I verified in October it settled and was told it takes 4 to 6 months for attorneys to split the settlement. I asked again recently and was told they have no idea when clients will see their money. It is pretty annoying to know there was a settlement and not see anything from it. It has now been 9 months…..
Are you saying you did not agree to the settlement but it was done without your input?
Joyce, you have waited too long for resolution. There should have been a qualified settlement fund established with your law firm. It is possible that your firm did not bring enough of their clients to settlement to reach the threshold that your firm agreed to bring. For example, firms that have multiple clients that bring suit against a manufacturer agree to bring say 95% of their clients to settle and if they cant deliver that percentage the settlement is not finalized. But, that should have been communicated to you by now.
I received my check about three months after I signed settlement agreement. If you are in the MDL go to that website and click on what manufacturer you have. Look at orders and see if a settlement fund has been set up. It will say something establishing a qualified settlement fund with ( your lawfirm) and certain plaintiffs.
You need to be firm in your communication with your attorney about your right to know what is going on.
After you sign for settlement, how long does it take for them to cut the check. Isn’t a law out there for people to get their money in a certain time frame. I signed settlement papers in December,
I’m sorry your law firm does not provide that answer. What do they say? Generally they have to go through all of the people in that settlement and get the final numbers together addressing liens etc… Because there are so many it takes time. But again, this is something your law firm should be telling you about….write me privtely if you prefer janeakre@meshnewsdesk.com
I had pay 5percent out of my part. Lawyers got more than 60percent of mine
anonymous, I need you to include an email for you to be posted in the future. I like to know who I’m dealing with, not for public dissemination.
They’re charging me the 5 percent also. You would think these attorneys would be fully informed about the do’s and don’ts by now. I was warned that if I didn’t settle for crap money I would lose my case. These attorneys are a bunch of bullies. You don’t hear from any of them in about 5 years, then suddenly out of nowhere they drop the bomb on you. They offered me crap, and I didn’t accept so they came back with a couple of more pennies and said that I need to hurry up and sign the papers by a certain date or my case would be lost. So basically I was pressured into signing, period! I always said that they were all crooked and I was right.
You signed? Did the 5% come out of you?
I have mesh inside of me after removal of as much as possible…I have to live or die with this inside of my body…I plan on a visit to the doctor who implanted this in me as the “gold standard “.HA…she got the gold…I will take her behind closed door and tell her my hatred for her greed and how she’s ruined so many women’s lives. I hope to scare the crap out of her.
L.G , I think we all would like to take our implant doctors and verbally give them a tongue lashing. I urge you to think twice about it, though. If you want to inform her of the impact this surgery has had on your life, please consider sending a letter instead. You can say what you want to say and there will be a record of what you said. Confronting her in her office to scare her could land you with verbal assault charges and that will not help you. The doctor would for sure put a note in your permanent record that would follow you from doctor forever and any future physicians would not be inclined to take you as a patient. If the doctor states that you came to the office with the intention of intimidating her/him and the staff, it will be difficult to establish yourself with any physicians. Also, , if you are still in the middle of your lawsuit, that record will be seen by attorneys on both sides. It just isn’t a good thing to do at all.
Totally agree…. in fact, everyone should have let their doctor know in writing what their life is like know following their mesh implant. Otherwise, how would the doctor know? Send a certified letter so there is a record. If you are going to trial it probably is NOT a good idea to blame your doctor for anything.. the assumption is that the doctor did not have adequate warning either…if you have settled, it’s probably okay to do.
5% court ordered MDL assessment was taken out of both of my check’s. I argued with my attorney over and over, and told him that I did not think that this was correct and yet they argued with me made me feel stupid and told me I was getting a great deal and still took my 5% out of each one of my check’s. I’m disappointed with judge goodwin and the way he has run this but at least Another attorney has the guts to say it was wrong. Please tell me who he is so I can contact him and Sue the attorney that represented me. I’ve asked him to return the 5% that was taken out of each one of my check’s but whether or not they will do it is another question. I’m sure that I will get a harsh letter tell me that I’m not and I won’t get anything back. They have more money than I do to fight me but if I have to lose all the money I have just to fight them and to proved that I was right about the 5% not being fair I will. As it is my life has been taken from me. My new normal is pain every day, worrying about the budget and isolation. And then to add more pain by them taking more money than they should have is just criminal almost. Shame on the attorneys who have done this. Shame on their greed. All I’m trying to do is to Survive. But too many attorneys are like flies on poop everybody wants to get some Of our money that we get for suffering greatly and they don’t care how they do. Your turn is a did this should hang their heads and shame. I didn’t wanna believe this about my attorney but he did the same thing that everybody else did. Judge Goodwin should step in and straighten this out but he won’t. What a tremendous ally we have in Jane. Without her none of us would have no one that this is wrong and illegal. Thank you again to her for all she’s done.
Did your retainer agreement layout the 5 percent fee? I’m sorry and know Dan to be a courageous attorney. You have a different experience. I’m sorry Sandy,,,,it seems the 5 percent should at the very least have been split with you,,,,in fairness unless you signed you would pay it.
My attorney took my CBF front from the first check. They paid 4% but my 1% was taken out of the total award up front. Is it possible your attorney took 5% of the amount of your first check , which was not the gross in order for you to have a higher initial payment then took 5% from what was left out of your final payment. For example, if you got a $100, 000 award they could have taken the entire 5% of $5000 out with all the other fees and case costs, including the 25% held back for lein resolution. Or they may have taken 5% out of the initial amount minus the $25,000 lein requirement ( $75,000 which would be $3750) so you would get more up front. Then, after leins are resolved, they sent you what was left but took the 5% out of the $25,000. This would have been $1250.00. See if that is what happened. They should have explained that when you inquired, though. They could not take 5% out for the total award both times, which would have been $10,000 total.
Nope on both my awards they showed 5% taken out of each one of the checks. I have heard and other attorneys paying anywhere from 3 to 4% of the 5% that they require and asked Mr. B many times about that and he completely refused. I’m completely Discouraged and there’s not much more I can do I guess. All I know Is $15000 was taken out of my check’s for the common benefit fund which I think is a crime in itself. Is a completely disabled woman who can never work again the least they can do is let us have our money. I guess greed tops everything doesn’t even your morals and your character
Sandra, you said both of your awards. Did you have two different claims for mesh products? If so, then you would be charged the 5% CBF on each claim. At $15,000 for the 5% you apparently were awarded $300,000, which is a good settlement amount. Was that on only one product or two? I think the law firms should pay part of this since they benefited from the CBF as well since discovery for the MDL allowed them to have a stronger case and negotiate higher settlements. Did you sign a contract that said you would pay the entire CBF from your award? If so, then that was a legally binding contract and there is probably no recourse. I just can’t believe the lack of communication some women experienced. This process is hard to understand and someone should lay that out in easy to understand language. It really is shameful that attorneys are not giving their clients that information.
She had one mesh manufacturer, but the payments were made in two different payments… so 5% on each amount would still be just 5%!
Right. A $300,000 setlement would be assssed $15,000 for CBF. If the award was $300,000 and the client was charged $15,000, then that was the correct amount.
My law firm is Aylstock,Witkin Kreis & Overholtz. They say they have a sett=
lement fund but I cannot locate it in the records. No the 5% was not in my o=
riginal agreement just the 40%. The documents I received to sign state that=
my settlement may be reduced by the following – the attorney fees,
Case specific costs, Common benefit or group costs, administrative costs,
Court ordered assessment (this is the 5% which they refeference comes from J
udge Godwin Pretrial order #62), and any liens.
They needed 55% to agree to the settlement or they could refuse to settle.
I believe there were 4111 of us.
If your assessment is accurate, the “common benefit or group costs” refers to the common benefit fund. They are getting 55% and you get the remainder? Really? Can you argue with that? It does not seem right that they walk away with more than you, the injured party, does.
Actually, Jane, the women get 60% but they have to pay their specific case costs from that. . A simple example is if you hire someone to come to your house to fix an appliance, they generally have a service fee. Ours here are about $75 to come out. But, when they look at your appliance it may need $75 in parts plus labor costs. They don’t pay for the parts from their service fee. They would get nothing. I pay for the parts plus labor plus what will be $150 for the two service calls. Every client they have has the standard fee of $75 but the other costs are added in specific to what repair the appliance needs. I end up paying the service person $275, but he didn’t MAKE $275. He made $150 plus $50 labor fee. It is the same principal with the settlements. There is a contracted fee that is standard for every client (40%) Then the client is responsible for other costs incurred ( like the parts need to repair something). These costs include filings, discovery, depositions, administrative costs, travel, etc. I believe the common benefit fund should be payed by the law firms. That is originally how it was set up when MDLs were set up. I paid 1% and attorney paid 4%. This should be challenged but if the contract only vaguely references it as additional costs, then that may be considered the clients cost.
Peg that is my firm and my contract says 40 percent plus costs and expenses but are not limited to ect…
My attorney told me the 5% comes out of my portion of the settlement. I did not agree to this when I retained this attorney. He said this was normal practice, and it did not seem like I had a choice. I did sign the settlement papers, although I don’t believe they mentioned the 5%. My group just met the 95% mark. While waiting for everyone to sign, I am told attorneys for J&J were reviewing the documents to ensure they were in order to move forward when the threshold was met. My initial surgery and 1st revision was in 2008. It’s crazy that 10 years later we are still waiting.
It is not normal practice and clients and lawyers MND talks to have experienced a variety of situations. Some law firms split the 5% into half with the plaintiff… others pay all 4% and have the client pay 1%. it is up to the law firm. Unless your retainer agreement says otherwise, I would think you have firm ground on which to make an argument. Judge Goodwin did not specify who is to pay! (Not a lawyer, just passing on info.)
We the victim pay all of the 5% fee one way or another, usually by renaming it other expenses that are unexplainable.
The 5% was taken out for each of my two cases! Is there anything I can do about it now?
Actually those are two separate cases and the 5% would be attached to each… the question would be who paid it…. your law firm could have paid 4% of each as some have done…. others take the full 5% from you. sounds like the latter for you… I’m sorry… Best to negotiate at the retainer agreement, though agreements can always been amended after the fact….
My firm charged me entire 5%,”standard” $1300, little over $6000 in expenses in addition to their 40%. Signed off on recap Dec 10 and now awaiting actual payment. 25% is being held back pending any medical liens. Being told payment by end of year or beginning of next. Do not feel this is reasonable time line, but because I have asked a lot of questions, can no longer get an answer from any of contacts.
hi jane just read the article on mesh news desk facebook about the common fund, in the court documents it says that the attorneys in an mdl have to pay this fee, how can a judge make new rules when there is already a law stating we dont have to pay it?
There is no law stating you do not have to pay it. Judge Goodwin has not said you HAVE to pay it…. it’s entirely up to the law firm. Generally they are supposed to contribute to the education they receive as a whole from each other’s research. However, if you don’t know to ask, you will often find it on your bill. Ask them to pay it. if they tell you the judge said you (the client) are supposed to pay it. Tell them “Show me where it says that!”….. they can’t. Don’t let the law firms take advantage of you because you are not a lawyer. Thank you for writing and thank you for reading!!!
Have not signed yet, just got the letter yesterday. Johnson law group are asking for the 5%.
Of course they are. “Dear lawyer, It’s been brought to my attention that Judge Goodwin, who oversees the pelvic mesh MDL, never issued any direction on who is to pay the 5% common benefit fee. I am willing to pay 1% as a good gesture to cover your expenses, but the 4% should be covered by your firm as part of your cost of doing business…. “
I am just learning about this now. I paid the 5 percent common benefit fee on top of the 40 percent and expenses. I just dug out the agreement I signed and it says the 5 percent is a “court ordered” fee. Should I be able to get this returned?
Fascinating. While it is correct that the 5% is “court ordered” it is NOT court ordered WHO should pay it. That’s a distinction your lawyer hopes you don’t understand. I would cite the items in the story back to them and say you want the 5% returned ASAP!! That is a very shady way for them to make an additional 5% in my opinion.
Thank you so much Jane. This site has been very educational and helpful to me over the years!