Hard Lessons Learned from Mesh Settlements
Mesh Medical Device News Desk, April 27, 2016~
The following is an Op-Ed written by your editor who has covered the pelvic mesh issues for more than five years. I am not a doctor or a lawyer and am not providing any professional advice.
I am sharing observations of the evolution of mesh settlements and how, in many cases, they are not in any way coming close to making an injured woman whole.
In the vast majority of cases, law firms are walking away with settlement monies than their injured clients.
After waiting many months, American Medical Systems (AMS) is beginning to pay out a promised $1.6 billion settlement to resolve about 25,000 product liability cases filed by women who alleged they were permanently injured by the company’s pelvic mesh. See background story here.
On September 30, 2014, American Medical Systems, a division of Endo International, announced the master settlement which was designed to resolve substantially all of its remaining U.S. vaginal mesh litigation. As AMS was the first mesh manufacturer to agree to settlements, some women are now receiving their offers in writing.
Remember, AMS settlement required around 90 percent participation so oddly, the injured women plaintiffs held some power over the settlement at that time, whether they knew it or not.
The contract you signed with your law firm contains the details. It should be understood, preferably before it is signed. If you wait until after you sign it, the news may not be welcome.
Did you file for bankruptcy? Do you get disability? Did you take out a loan? Do you owe a hospital or doctor?
Unfortunately, what women are now finding is that the firm can go back into past bankruptcies, even if they are a dozen years old, to satisfy creditors. In that case, a woman with a $30,000 settlement gives half to her law firm (40% plus expenses) and $10,000 to the creditors and is left with $5,000. Some injured women are left with nothing.
Whatever the fine print says will prevail. Those entities will have to be paid before a mesh-injured woman receives her settlement. Your attorney or the Special Master may be able to negotiate downward any outstanding debt.
When you receive your check is another question. Women call me screaming they do not have their money. Again, the language of the contract will prevail.
Does it say payout will be in a “reasonable time” or some other wiggly language? “Reasonable” means nothing while language that says “payout in the form of an overnighted check must be received by plaintiff within 30 days of signature of this settlement agreement otherwise it is null and void” is much stronger language, which you may or may not have the option to add to your contract.
Your attorney should be able to advise you on this option.
The Mesh Rush
How did you find your law firm? Were you solicited over the phone? Some people were solicited by phone calls from strangers who knew their personal information.
Even your editor was called relentlessly about my “bladder surgery.” (I never had any). When questioned about who they are, you get a vague answer such as a friend told them you recently had bladder surgery. How they obtain personal data protected by HIPPA (federal Health Insurance Portability and Accountability Act) is unknown.
For example, your editor received numerous calls from “Glenn” from “Medical Health Center.” Here is his number 305-809-8875.
Glenn said I could receive “medical compensation.” Clearly it was from a boiler room with many voices in the background. “We can proceed with your medical compensation for the bladder surgery you had,” he said. (*Note- I had no bladder surgery). The calls are relentless. See a Bloomberg story here.
Johnson & Johnson filed a complaint with the federal court in Charleston WV where multidistrict litigation is consolidated charging “unscrupulous groups and individuals” are fraudulently soliciting women to sue even if they have no problems. Some of that type of solicitation has tainted the validity of mesh-injured claims in the eyes of the public. I was told by a doctor that women were looking for a “payday” and that’s what the mesh mess was all about.
Some women are told by a law firm that is soliciting their business they have a million dollar case and there are no worries. Anyone experienced in legal matters will tell you that promises such as these are a red flag. No one can tell you whether you will win your case. They certainly have no way of knowing what it is worth.
Such promises should be a red flag, just like a guy in a boiler room named Glenn.
The reality for many women is their “million dollar case” ends up in a payout of about $5,000 or even less. That is not enough for necessary surgeries in the future or to replace an income lost due to disability from pelvic mesh. Signing the agreement means it cannot be disclosed and you are forever foreclosed from filing any additional action against this manufacturer.
Many law firms solicited cases then passed them on to another firm for a “fee.” At one time, early in litigation, a mesh case was reported to be worth about $3,000. That fee is generally paid out of the 40% you owe your law firm.
Many women have no idea that their case was actually passed on to another firm. That may explain why the original firm has no answers for you when you call.
To add insult to injury, once a settlement is signed there appears to be a long delay in actually issuing a check.
The Fine Print
Multidistrict Litigation is supposed to streamline the process and avoid redundancy. One firm can rely on the discovery received by another so they do not have to reinvent the wheel, theoretically reducing billable hours and saving the client the cost of working up her case. But that may not be what’s happening in real time.
What the AMS settlements are showing is that law firm frequently charged 40% for their services. Some even added expenses to that 40%. However, many firms did not specifically work up a case for trial.
However, other law firms spent in excess of $1 million to work up an individual case for trial. This is the true definition of gambling. There are no assurances you will win a case. If you lose at trial, so does your law firm.
Common sense dictates if a lawsuit is won, that firm should expect to be repaid for the investment it made in your case.
Medicaid, Bankruptcy, Liens
Those outstanding debts will be subtracted from your settlement dollars. One woman tells MND after Medicaid and her lawyer were paid, she got absolutely nothing. Another woman reports the law firm went back into a 12-year-old bankruptcy to satisfy creditors.
Those interest accruing loans will also have to be paid back as well. A $3,000 loan just to get by, can amount to $15,000 by settlement day.
Another interesting note, government benefits may be affected by accepting a settlement. Medicaid and disability could adjust downward without a Special Needs Trust, see story here.
To add insult to injury, many law firms will not take your call or will rush you off the phone. Some have paralegals who make promises that cannot be kept such as giving you a time you will receive your check that does not come true. #