Mesh Medical Device News Desk, February 5, 2019 ~ The judge overseeing more than 100-thousand pelvic mesh product liability lawsuits addressed the looming question of whether or not lawyers involved in the cases could collect upward of $550 million in fees and expenses in the mesh litigation.
On Wednesday, January 30th, Judge Joseph Goodwin of the Southern District of West Virginia, granted a request that 5% of settlements and judgments handled by this federal court could be used to compensate lawyers.
“However, based on the numerous factors discussed above and the awards given in similar MDLs, this court believes that the award given is conservative and serves to justly compensate common benefit counsel for their work without unnecessarily burdening the plaintiffs in this litigation,” Judge Goodwin wrote.
Image: Judge Joseph Goodwin
By comparison, he pointed to other courts where the fee exceeded 5%. In the Actos litigation the common benefit fee was 9.9% and in Vioxx litigation it was 6.5%.
COMMON BENEFIT FEES
H. Garrard leaving federal court Charleston WV, July 2013
Judges approved a common benefit fund in this type of mass tort to spread the cost of litigation among those who file in an MDL or multidistrict litigation. At one time, Judge Goodwin had more than 104,000 product liability cases filed against seven manufacturers.
The common benefit fee is supposed to cover all of the collective works done by law firms such as depositions and discovery, vetting experts, developing theories of liability and conducting bellwether trials so each firm does not have to reinvent the wheel.
Five percent currently represents $366 million that has been paid into the common benefit fund by defendants from settlements and jury verdicts. When all cases are settled the fees for lawyers could top $550 million.
The Common Benefit Fees and Cost Committee (FCC), made up of eight law firms, is headed by Henry Garrard of Blasingame, Burch Garrard & Ashley of Athens, Georgia, which seeks the largest amount of compensation, based on the greatest number of hours contributed to the discovery process.
Those eight have awarded themselves $249 million of or two-thirds of the $374 to be distributed. This averages nearly $29 million per FCC firm, or $739 an hour.
OBJECTIONS NOTED
Lee Balefsky, Kline Specter
With an average court settlement of about $40,000, lawyers for Kline Specter, a Philadelphia law firm that’s tried a number of high profile mesh cases, objected to the “excessive and unreasonable” fee and instead encouraged that half be returned to the injured women.
The 5% common benefit fee is too high, Kline Specter’s Lee Balefsky and some firms are being “significantly overcompensated.”
He points out that “a few firms are seeking to grab two-thirds of the fund. Instead they should remit their proportionate share of these saved funds to the injured women. Thus, the proposed allocation is directly relevant to the proposed assessment – and both are wrong.”
Meanwhile Kline & Specter falls at the other end of the range and is scheduled to collect at an hourly rate of $116, says the motion. The Philadelphia-based law firm has submitted thousands of hours of work done for state litigation in Pennsylvania, which it says are not being considered.
In a response filed December 3, Garrard claimed Kline Specter’s letter was “self-serving and unfounded” and that the Philadelphia firm benefited from research put into the MDL.
Of the seven pelvic mesh product liability trials so far in the Philadelphia Court of Common Pleas, clients of Kline Specter have been awarded compensation in five of the seven trials totaling $105.16 million.
Since the MDL formed in 2012, tens of thousands of transvaginal mesh cases have been resolved in this court through either trial or settlement for a total sum of $7.25 billion.
There are thousands of cases still on the docket waiting to be settled or remanded back to state court for trial.
It’s estimated that settlements could reach upward of $11 billion once all of the cases make their way through the system.
Judge Goodwin agreed that every plaintiff benefited from consolidating cases and allowing each firm to take advantage or the millions of defendant-produced documents, hundreds of motions and legal theories and experts that led to bellwether trials that eventually led to plaintiff settlements.
“The fruits of this efficient process were made available to every plaintiff and their counsel. The court finds that every plaintiff benefited greatly from these efforts.”
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LEARN MORE:
January 30, 2019, Pretrial Order #327 on Fees
MND, Philadelphia Firm Asks Judge Goodwin to Denying Paying MDL Lawyers Millions in Fees and Expenses, December 3, 2018
UC Hastings College of the Law on Contingency Fee Caps
MND, Mesh Litigation MDL- What Are the Benefits?
No! I speak for thousands! We or some (victims) Did Not Have Not benefited in any way, in fact, some of us continues to be harmed from the Courts procrastination of this questionable, one-sided MDL.
Anonymous- You seem to be so willing to contribute. Would you like to write opinion pieces for MND?
This MDL and its common benefit fund has caught the attention of a National mainstream news paper, The New York Times. On Friday, February 1, 2019, The NYT published an article concerning one of our mesh sisters’ experience. A version of the article appeared in print on February 1, 2019, on page B1 of the New York edition with the headline:
For Women, It Was Painful. For Lawyers, It Was Profitable
Here is the article. I’ve written Matthew Goldstein since I’m a reporter ( for 30 years) and have spent a wee bit of time on this topic. Generally if there is someone who is well versed in a topic, a reporter will call them, if for no other reason than to see what they know and how they can help me. But regardless, I never heard from Mr. Goldstein. Had I heard, I might have told him about the much lower settlement dollars I’ve heard about than $40k. This is the latest in the NYT articles that miss the Big Picture of exposing how women were harmed, through no fault of their own, by medical device manufacturers who knew there would be complications but launched the products on the market anyway. Reckless disregard for patient health in my opinion. NYT- Big Picture!!!
https://www.nytimes.com/2019/02/01/business/pelvic-mesh-settlements-lawyers.html
Question Jane! Is your offer genuine or is it sarcasm?
You have done a wonderful job in keeping us (victims) informed. And I detect a strong dislike for the pharmaceutical giants that carelessly caused this devastating harm to thousands around the globe. Thank You!
But I comment from the victims perspective.
No I’m not being sarcastic. The Your Turn section is just for folks who want to write. I’d appreciate the help! Sincerely. janneakre@meshnewsdesk.com Contact me! (Just FYI, if I”m being sarcastic I use a LOL,,,,online it’s difficult to tell otherwise.)
Thanks for the offer Jane, however I sense, from your comments, your hesitance to attribute accountability to certain attorneys bad behavior in this nightmare. I am a victim of this horrible injustice. I have been catastrophically injured by the pharmaceuticals defective products, by the attorneys defrauding me of my personal property, my money, my rights. Exposing my case to slow Justice if any justice at all. So… I am very passionate about the outcome of this extremely, unpleasant shameful state of things. I have posted a few comments recently (about the bad actors behavior), that explicitly obey your rules, yet they were never posted. Why?
Comments are posted unless they take aim or a swipe at someone,ich some have recently with the name anonymous. It may not be you however.,, this is not a place to bash anyone or me. Other than that your comments are posted. I would prefer if you provide an email when making a comment and not just an IP number….though I do get a great bit of info from that.
Correction…implicitly obey your rules. An email address is personal property that should be kept confidential, so should our comments.
Any comments posted here are available for all to see and must be approved by me. An email allows me to communicate with you but does not appear for anyone else to see, just so you know.
Correction… the identity of the commenter should never be shared with others, if known.
And it never it…. unfortunately sometimes people use their real names and I omit them or change them. Others do not leave an email. I prefer to see an email, which again, is NOT public!!
This is so unreal that they rob us from our funds. I got a letter in feb 2018 from the Temporary holdback fund determination and have not heard a thing about receiving funds and its been a year ago that special master Brinkley sent this to me. so has anyone one else received anything on the holdback fund.
The issue here is the excessive, unreasonable contingency fee of 40% fee in this MDL. Other Judges in recent MDLs have exercised their power given to them by the statute, to balance the contingency relationship between the attorney and his clients.
In Vioxx, Judge Fallon noted that contingency fee caps and the award of fees to common benefit counsel were intertwined. See Vioxx, 650 F. Supp. 2d at 556 n.9
Judge Fallon found that the MDL statute implicitly authorized an inquiry into the reasonableness of fees. First, the MDL statute requires that transferee courts “promote the just and efficient conduct of each actions. “28 U.S.C. § 1407(a). In the context of contingent fee arrangements, implementing a reasonable cap promotes justice for all parties by allowing claimants to benefit (as their attorneys have) from the economies of scale and increased efficiency that an MDL provides. Certainly, this statutory language lends support to the proposition that MDL courts, like class action courts, can exercise equitable authority to examine the reasonableness of fees. In Vioxx, Judge imposed a 32% universal fee cap, including the 6.5% allocation for common benefit fees.
Judge Frank—In Guidant, imposed a 20% across the board contingency fee cap based on the unique contours of that MDL. After analyzing scenarios, the Court finds that 33.67% of the total settlement fund going strictly toward attorney fees, were reasonable under the circumstances.
Judge Frank held: “this Court had the inherent right and responsibility to supervise the members of it’s bar in both individual and mass actions, including the right to review contingency fee contracts for fairness, “citing some of the same ethics cases prohibiting excessive and unreasonable fess on which Judge Weinstein relied in Zyprexa.
Thank you for that…. very interesting. On the face of it a 40% fee PLUS common benefit of 5% seems excessive for the settlement purpose which is far less intensive then preparing for a trial. I’m curious- How many of you had the 5% fee taken out of your 60%? Can you show me? It should come off the top.
Why didn’t this Court use it’s power, it’s responsibility to regulate all actions by imposing a cap on the attorneys contingency fees? The 40% excessive attorney contingency fees, plus tacked on elaborate expenses, like.. travel in firm’ private airplane, travel and fees paid to expert witnesses, (double charge) major Issue here.
Some attorneys were allowed to charge their permanently injured clients up to 40% contingency fees, plus other questionable expenses.
There should be an investigation!
Well, my law firm, Blasingame paid 4% and I paid one % and that one percent came off the top of the total award. It is not based on the 60% that goes to the plaintiff but is based on the full award amount. I will say that my law firm did do some post award additional funding based on the extent of my injuries. It was nothing that I requested, though.
The 40% excessive, unreasonable contingency fee… plus additional questionable expenses is the (Issue). Example…Out of pocket expenses include, but are not limited to…. travel in the firms (private) airplane.
*** in small print at the bottom of your closing statements
I would love to see that if you care to send it anonymous, just for my own eyes 904 613 2828 or janeakre@meshnewsdesk.com
I have received one settlement and the attorney charged 35%, 5% for MDL and over $5,000 for expenses. Out of $75,000 I cleared $34,000, less than half!! I have signed for another settlement, will attorney still charge another 5% for MDL? Probably so!!
Is it a different settlement and/or different mesh? Then yes, it should be another 5% unless the settlement or product was the same. It’s basically a different case. I’m sorry.
I applied to the temp holdback and was awarded money from that had to be done by dec 30 2016 will they take anther 5 percent for the mdl got my letter in feb of last year haven’t received it yet don’t know when they are going to process the holdback yet. anyone heard anything on this?
You need to talk to your attorney. Each law firm negotiated their own settlement for their clients so everyone is on a different timeline based on when the settlement was finalized. Have you already been paid your initial settlement ? Law requires the attorney to withhold 25% of your award for lien settlement. Is this what you are calling the holdback fund? That will not get sent until liens are paid then you would receive the balance. Many different entities will lay claim to these dollars. It should not take 2 years to do, though. Your attorney has a responsibility to explain this to you. Ask them to do that until you fully understand what is going on.
Still Standing: This is from AMS and yes I settled my first offer and applied to the supplement payment that had to be before dec31 2016 I did for extraordinary injuries and got a letter awarding me more funds all medical is clear so just wondering if anyone else has received there. I didn’t have any lien hold this was something you could apply to when you got your first offer but you had to accept it to apply for this.
What is Judge Goodwin talking about when he states about his efficient process within this MDL? Are you kidding Judge or are you living in a fantasy world? You set there in your courtroom dressed in your robe and things are barely moving along and you have the gall to say this is an efficient process. Try being in our shoes even for a little while. Our bodies racked with pain, suffering in our finances and our relationships and you can still brag about your efficient process. Get real! Get off your hands and do something to help us. All we get is broken promises and continue to hope and pray everyday that something will happen and we will receive good news, but day after day and year after year nothing and then you say that all plaintiffs have benefited. How??? Most of us have not! Maybe it’s time for you to step down from the bench and turn it over to someone else who may be better qualified to get things moving because I don’t think you really care!!!
Judge Goodwin is doing what he can! I’m not sure what else you want him to do…. both sides get an equal opportunity in the court.
Ladies, consider this scenario: Mesh injured for 15 years, case has been sitting in Bergen County for 7 years. If settlement ever occurs, Attorneys take 40%, 5% MDL fee and expenses. Could reach 50% of the settlement. Then insurance carrier recoups 15 years and 9 surgeries. What’s left for the injured?
I just do not feel the settlements are fair at all. A person who had 2 surgeries is being offered the same settlement amount as a person who had 3 + surgeries. Nothing else is considered. This is not justice.
I am in the same position as Modene:
I had 3 mesh related operations which costs $61,000 and I was offered a little over that amount as a settlement. I appealed. How can Judge Goodman say it;s been fair.
Jane I appreciate you and your site for the years of information that you have provided, but I have noticed for quite sometime now that you seem to be switching sides. As far as Judge Goodwin it seems like you think he is the greatest. Well, most of us who are hurting don’t feel that way. He allows this to drag on and on and then you say what else can he do? Really?
There has to be something he can do to get this moving at a much faster pace! This is ridiculous!!!
Also, no more post from me as I may as well save my breath.
I didn’t appreciate your short answer, but I have seen you do that to others as well.
I guess you don’t really know what it is like for us ,but thank God you don’t!
I’m happy to give you a longer answer if you would provide your email. Read my comment again… I don’t think I’m an apologist for the judge. Interesting how this movement is turning inward to vent its frustration. Industry loves that! Please resist. Remember where the original harm came from. Deal with individual perceived slights personally, not publicly. Again happy to talk to you janeakre@meshnewsdesk.com
I feel that this comment can’t be allowed to slide. Jane has been a tireless advocate for mesh women and she has done it all on her own dime. She owns it, she is under no obligation to anyone to manage her content to just state what some want to hear. Jane is a journalist first and a very good one at that. She provides a space for the free exchange of ideas, even though she may not always agree with what the women who post here have to say. If she wants to make a comment, she should be allowed the same free expression that she gives everyone else. She tries to inject some reality into this communication process by stating things that she knows through her extensive work in this mesh litigation. I appreciate that. Judge Goodwin must operate within the defined legal parameters. . he can’t make companies settle, he must allow arguments for both sides and rule based on legal precedent, not on a whim. Do you think he wanted to get this dumped in his court? Do you think he would be allowed to continue if he was doing illegal things? Jane is right. The manufacturers are the villains here. They caused our injuries. They are responsible for our pain. Yes, it is a crappy system, but it is the system we have in place. But, each of us wanted to file a case. We were not forced to hire our attorneys. We signed the contracts. Any one who did not want to pay 40% could have hired a law firm and paid up front for everything billed by the hour. But we didn’t because the risk was too great. Yet, we allowed the attorneys to take that risk on our behalf and then call them frauds and crooks. I do think they have made far more than they should have, but it is the dark reality of the MDL system. To be enraged is normal but here is the thing. Money will never undo what was done. Money will not heal us. We must do the hard work of healing from within and that can start now regardless of where you are on the legal continuum. It is hard work but all of us are worth the effort.
Jane, I join hundreds of women who have been so blessed by you to offer a collective thank you for being there, for believing us, for keeping us informed. We are better because of you. We are stronger because of you. We are still standing because of you. I’m humbled by your gift to us. It is profound. You have held us up. You are truly a mesh sister and ferocious mesh warrior.
Still Standing- you bring me to tears, thank you! I feel like there are many viewers here and few supporters so it is a challenge to keep going. Thank you… yor your support.
Thank You!.Waiting For Justice, like you, I appreciate Jane for providing this space to allow everyone invested in this ordeal to vent, to spectate, to participate. But, we should be able to voice (our) true feelings, as long as we voice in a respectful manner. No one has the right to try to change (your) narrative, your account of events, your experience.
I personally feel that a particular (paid) person is planted to spoil and to cloud the real issues.
The 40% excessive, unreasonable contingency fee, plus additional tacked on elaborate expenses, should set off an alarm, raise a red flag for any (honest) hearted human being.
The questionable logistics of this MDL caught the attention of a mainstream newspaper, The New York Times, Matthew Goldstein, the writer that just happens to investigate white collar crimes. The story contains a link so you may voice your concerns, if you wish.
I strongly feel that there should be an investigation of this injustice. Judge Goodwin’s actions should be reviewed as to why weren’t a cap imposed on this MDLs attorneys contingency fees, as have other judges in recent MDLs. Motions to remand of completed pretrial proceeding cases, sits on his desk for months. Thousands of victims continue to suffer. Why?
Everyone involved this atrocious MDL should be held accountable for their actions. Everyone!
Anon- Once again I’d appreciate your email when you comment. Rest assured no one is changing anyone’s narrative on these pages unless it is rude, directed at someone else, profane, or just plain disrespectful. This is a No Drama zone. It is a place to vent and mostly to learn. No idea about plants and part of the reason to comment with an email is to prevent that. So thank you. Once again, your emails are not shared, ever! I made that commitment when this began in 2011.
Thank You Jane! I Really, Really, Truly appreciate your kindness.
Investigation! Investigation! Investigation!
The victims (rights) will continue to be abused unless others in power step in to balance this injustice.
Anon: I will break my promise not to post anything further, but I feel I have to. You hit the nail right on the head. The reason I am upset at Judge Goodwin is simply this. How many times were things scheduled that made the mesh injured think that maybe, just maybe the ball would start rolling on things and would get things moving for us only to find out that the Judge gave in for one reason or another and postponed things until a later date. Many times a much later date. I feel like he needs to have a backbone and tell both sides that the date is set in stone so get ready. He knows these crooked lawyers for the mesh makers are just stalling for time, yet he allows it while we wait, wait and wait. I for one am sick of waiting as are most of the injured and hurting. Stop the insanity and do your job your honor!
Jane no offence to you. As I stated previously I appreciate all that you have done. It’s just that you really don’t know how we feel unless you have been there and once again I am glad that you are not. This whole process in one big joke for most of us. Yes I know from a previous post from another reader who said do you think Judge Goodwin wanted all these cases dumped on him. I agree no. He has the option to remand them to state court which for some reason he does not want to do. Is it because money would be lost from the MDL? Makes me wonder???
Waiting and Anon- I must insist that in the future you add your email … that’s the rule I make and hey, I get to make the rules! We know many watch this page so let me set the agenda here. I try not to judge unless I’ve walked in someone’s shoes and I can only imagine that for Judge Goodwin, this is the not how he expected to end his career. He is ready to retire. Read his writings. He is quite capable and wants to move things along. I’ve sat in his courtroom and heard his words. Why he does what he does, we can’t know other than he must follow the law. He makes the same money no matter what he does and may not be able to remand. As he said early on, both sides will be unhappy in this negotiation, which is the nature of negotiations. Unfair? Yes. Unjust? Yes. Women badly injured by surgical mesh have suffered an extreme violation and that’s why I continue to write here, (for no income) whether I”m injured or not. It is a travesty! Mainstream media doesn’t seem to get that for some strange reason. Stay well and I’m sorry.
Well Jane, you know that an idea of writing about money is sexier than an article about injured people. It’s a much better read when focused on who’s getting paid, Corporations, Doctors or Attorneys. That’s mainstream media… what get’s the clicks, right?
I think the story of who people were before their injury and what they have become afterwards is not just interesting but fuels my sense of outrage. Maybe that’s just me. Granted, following the money trail is what MSM really likes to do… those “greedy trial attorney” narrative is a favorite. Not to be an apologist for lawyers but they do work hard and some actually get results. Others coast on their behinds and collect millions. It is a very good story!
I got 2 different award checks and each one of them took 5%. It was 1 meshing product that I had but I had to basically pay 10% administration fee because I received 2 different checks. My company never went to court so I think that the 5% administration fee is wrong. What is women were never going to win in this one. That’s to just take what money you can get and go away and live your life. Yes was not set up to have the victim’s best interests at heart. You can go to the Internet and look up MDL and you’ll find out that many people do not like it. Then you take attorneys that want to be greedy at 40% plus you have to pay for Experts that did absolutely nothing for you but you had to pay them in case you went to trial. So I paid a $8000 for absolutely nothing. But there’s no way to fight it it is what it is. I think this is way too much money to be paid Isn’t that what the 40% is for. My experience was I walked away with about 38% of my original settlement amount award it. Face ladies you’re screwed and there’s nothing you can do about it
Thank you for the information. Boston Scientific is negotiating and refusing to pay. I am in agreement with you ,everybody won except the Plaintiffs.
You need to talk with your attorney. 5% is the common benefit fund and it is not taken out both times. Everyone gets two checks. The first one subtracts the attorney percent, your case costs, 25% that is retained for lien searches, and the common benefit fund. The second check is the remainder of the 25% that is left after paying back private insurance, Medicare or Medicaid or any other hospitals, etc that have claim to your award. Prior bankruptcy liens can also be be deducted. If you were charged twice, you should have that rectified.
Jane, I want to thank you for all that you do and keeping us informed and bringing understanding. Blessings to you. I have been waiting 5yrs for Flint Law Firm to offer me a settlement. The first one was 20,000.00, I turned it down, my surgery cost more than that. I thank God for patience and know that someday and some how Justice will prevail, you may get away with it on this side, but Boston Scientific, God is watching.