Mesh Litigation FAQs & Guides

/Mesh Litigation FAQs & Guides
Mesh Litigation FAQs & Guides 2018-09-12T12:09:51+00:00

As the mesh litigation heats up, more and more women have come to your editor with legal questions. On this page, you’ll find helpful guides on legal financing, subrogation and other must-know topics that can directly impact your case, with a focus on the practical financial and legal aspects of pursuing a lawsuit.

Guides & Resources For Mesh Lawsuit Plaintiffs

Remember, your editor is not an attorney and none of the advice or information on this page should replace the knowledge and guidance of your own lawyer. To skip straight to a topic, click the appropriate link below:

Lawsuit Financing: What To Know Before You Borrow

Scales of Justice, WikiCommons

Scales of Justice, WikiCommons

SPONSORED CONTENT, July 15, 2015

Mesh News Desk editor, Jane Akre interviewed Mark Bello of Lawsuit Financial Corp of Farmington Hills, Michigan.

Mr. Bello provides MND readers with some solid information they need to understand before reaching out to seek funding to make ends meet in advance of a expected lawsuit settlement. Yes, funding in advance of a settlement is risky business, but with information comes empowerment. 

There are many misconceptions about the field of lawsuit funding and apparently some bad apples have entered the potentially lucrative field of lawsuit lending.

. Hopefully, this interview will shed some light on the issue. 

Mark M. Bello 877-377-SUIT (7848)

Lawsuit Financial Corp. LLC

Farmington Hills, Michigan

http://www.lawsuitfinancial.com/about-us.html

Q: Let’s talk about the 800 pound gorilla in the room.   Some lawsuit “lending” companies are often accused of being “predatory.”  Why is that?  What makes you different?

“There are many different ways to define “different.”  My first comment is to quarrel with the use of the term “lending” in conjunction with a lawsuit funding transaction.  This is a misnomer because lawsuit funding transactions are not “loans.”  A  “loan” requires an “absolute obligation to repay” in almost every jurisdiction in America.  With lawsuit funding, there is no absolute obligation to repay; the funding is excused if the lawsuit is unsuccessful.  There is no hard collateral, just a lien on a case that may or may not be successful.  Many lawsuit funding companies differ in terms of policies and rates and lawsuit funding can certainly be expensive because of the extraordinary risk being taken.  When a funder’s capital is at risk in a pending lawsuit, it should not be a surprise to anyone that these transactions trend on the expensive side.”

Q: When you hear that term ‘predatory lending’ does it make you cringe?

“I confess that I am a little tired hearing it all the time. The use of that term exhibits a lack of understanding of what lawsuit funding companies do.  A “predatory lender” charges excessive interest rates even when it receives hard collateral in return for the loan.  A person who has spotty credit may apply for a credit card, a car loan or a mortgage.  His bank accounts can be subject to lien, his wages garnished; his car or home can be repossessed.  So, why charge excessive interest?  The lender has solid, proven ways of assuring its principal and profit return.

Lawsuit funding companies must, for repayment, by contract, look only to the cases they have funded.  All other assets of the person seeking the funding are irrelevant.  A person can have significant assets but be cash poor and the lawsuit funding company can’t touch a single asset.

Companies like mine lien cases and only cases.  If a case is successful, our principal and profit is paid; if the case is unsuccessful, we lose our money.  Not only are we not “predatory”, we are not “lenders”.  What we do does not fit the commonly understood, legal definition of a “loan”.   That we charge high rates for the risks we take does not make us “predatory”.  We must offset losses with the profit we make on wins.  And, there is much uncertainty; we get involved in cases that are handled by lawyers we hardly know, and for clients we have never met.  If the case fails, we forgive it all. It should shock NO ONE that a transaction with this much risk can be expensive.  Lawsuit funding, in general, trends on the expensive side; the client should be made aware of that going into the transaction.  I am a full disclosure kind of guy.”

Q: Do you recommend that clients seek lawsuit funding in smaller increments, and only in certain circumstances?steth 185

“Absolutely.  It’s certainly wise to err on the side of smaller versus larger and, with my company, a plaintiff is not limited to just one advance.   If a client needs $10,000 because her lawyer has advised that settlement is 10 months away and the client is short of making ends meet by approximately  $1,000 a month, that client is far better off seeking $1,000 a month then $10,000 all at once.

There are two very important reasons this is true:

  1. Profits in lawsuit funding transactions accumulate over time.  Thus, advances occurring closer to settlement time will be cheaper than those provided earlier.
  2. Just because the lawyer predicts that the case will take 10 months to resolve doesn’t mean that his prediction will be accurate.  If the case settles in six months, the client didn’t need the rest, saving the client a lot of money. Some companies don’t tell people that.

“I would encourage people to ask the lawsuit funding company whether or not they can apply for more than one funding.  Since profits are charged based on amounts advanced and the length of time the money is outstanding, it is common sense to seek multiple advances at smaller levels rather than one large advance.

“People seeking lawsuit funding should have serious needs, to save their house, save their car, pay tuition, feed their family, keep their lights and heat on.  Funding should be used for important reasons; gifts or trips can wait until after the lawsuit is resolved.  My company, Lawsuit Financial, operates that way; however, my sense is that many companies don’t ask the client why he/she is seeking funding and many companies don’t assess “need” rather than “greed.”  I try to provide less rather than more and only fund in situations where the need is serious. My sense is that many lawsuit funding companies don’t operate that way.

“If we had a crystal ball and knew that a case would fail, paying off a credit card utilizing lawsuit funding would be a good thing.  However, if the case is successful, the cost of lawsuit funding could (and in most cases will) exceed the cost of credit card debt.  Thus, in the usual situation, it makes little sense to pay off a credit card.  What DOES make sense is to use lawsuit funding to avoid falling behind on payments due, thus damaging your credit reputation.  Bad credit can cause years of financial difficulty.   Clients should be advised not to pay off car loans with lawsuit funding proceeds; use funding only to keep payments current.”

Q: Is it possible for the client to owe twice the amount advanced?

“Yes; and sometimes, even more than that.  Lawsuit funding is a bet; if we lose the bet, we lose our money.  If we win the bet, to stay in business, we must profit to an extent that pays off the bets we lose.  Or, a consumer can look at it as an investment.  Some investments are successful and some aren’t; if we pool our investments, we hope that the successful ones outpace and offset the unsuccessful ones.  Otherwise, we are not profitable.  The same is true with the speculative investing in or betting on the outcome of lawsuits.  And, don’t forget, between success and failure in lawsuits, there is compromise.”

dollar sign, WikiCommons

dollar sign, WikiCommons

Q: What do you mean by compromise?

“Compromise should occur when a lawsuit is successful, but not successful enough to pay the client his/her share of the recovery, the lawyer’s fees and advanced costs, and the principal and profit due a lawsuit funding company. Lawsuit Financial has an industry-exclusive compromise provision in our contracts with our clients.  If principal and profit exhaust plaintiffs’ recovery, we will compromise our returns.  For instance, if a client owes $10,000 in principal and profit, and the net recovery to plaintiff is $10,000 after attorney fees and costs, we will provide a discount, so the client will walk away, not only with the money we provided to her earlier in the life of the case, but also with additional case revenue.

“Many companies will take the client’s entire recovery in situations like this.  In their view, a contract is a contract.  The client owes $10,000; there is enough money to pay funding and profit in full.  We are entitled to the entire net case proceeds.  At Lawsuit Financial, we don’t think that’s an appropriate result; the client is the one who has lived with serious injuries and had to fight with insurance companies in court, not us.  Thus, we will provide a resolution appropriate compromise.   As you can see, we take real risk in funding these transactions.  Successes must offset failures and compromises.

“Mesh cases and other multi-district, class action type litigation are excellent examples of the risks taken in providing litigation funding.  Multi-district litigation has tremendous uncertainty both in time and outcome; thus, these transactions must trend on the expensive side.  It could take three to four successes (both in time and money) to offset a single large loss or a protracted litigation length in a Mesh case.  Somehow, losses and large time lapses have to be offset by successes.

“In the consumer money business, only a lawsuit funding portfolio operates that way.  Remember, with a car loan or mortgage, the lender can repossess or foreclose if the borrower defaults; the lender, upon repossession, owns the asset and can sell it to satisfy the obligation.  Only the plaintiff can own his lawsuit; a stranger cannot appear on his/her behalf or take it over.  A lawsuit funding company cannot “own” or “repossess” the plaintiff’s case; we don’t get the kind of collateral a lender does.  That’s what distinguishes lawsuit funding from lending.  We advance money on speculative lawsuits and forgive the obligation if the case fails; there is no assurance that the obligation will ever be repaid.”

Q: Do you ever walk away with more than the client?

“I can’t speak for other funding companies, however, no; that is a result that can never happen with Lawsuit Financial.  Between the amount that we advanced and compromises at the end when necessary, Lawsuit Financial would never participate in a result where our company walked away with more than the client walked away with.”

Q: What does a client need to ask before receiving an advance?

  • Is your funding principal and profit contingent upon case outcome (is the advance excused if the case fails?)?
  • What is the minimum profit charge and what is the maximum (if any)? (If the company refuses to cap the profits, run as fast as you can the other way!)
  • Do you charge fees of any kind over and above profit and do you add these fees to the amount of the funding advance and charge interest on them? (If the answer is “yes”, run as fast as you can the other way!)

“Many companies ‘fee up’ (or “junk fee”) their contracts.  They charge a host of fees:  underwriting fees, shipping fees, application fees, wire fees, transaction fees, etc.  Then, they roll these fees into your contract and the amount the client “received” in funding includes all of these fees.  As profit begins to accumulate on the advance, it is also accumulating on these fees.

“Many companies won’t tell clients about these fees and how they increase the cost of funding on a monthly basis.  A $1,000 contract could have between $500 and $750 in fees added to the funding amount.  The effect of this is that the client has contracted for funding in the amount of $1,500 or $1,750 rather than the $1,000 actually paid to the client as “funding”.  At Lawsuit Financial, we don’t apologize for the profit we charge, but we disclose it, verbally and in bold print on the front and third page (schedule) of our contract.  We charge no junk fees (or fees of any kind).  A telephone conversation with a client never terminates without the client understanding exactly what funding costs over the various stages of litigation and without getting our recommendation about funding strategies.

“My professional staff is required to ask a client:

  • What do you need the money for?

“Many companies don’t care why the client seeks funding.  At Lawsuit Financial, we think that does a disservice to the client.  If he/she is calling with a valuable case, likely to resolve successfully, seeking funding that trends expensive, a discussion of why the client needs the money  (“need”, not “desire”) is an important conversation to have.

“The client should also ask:

  • If I don’t have the result expected and I owe you a lot of money will you guarantee a compromise?

“I would be curious to see how others in this industry answer this question.  Lawsuit Financial has a guaranteed compromise provision written in our contract.  I believe that we are the only company in North America that offers, in writing, a compromise in a situation that warrants compromise.

“Lawsuit Financial is attorney-owned and operated.  Many lawsuit funding companies are owned and operated by financial gurus.  Ask the financial guy:  “Does it bother you that your profit is being made but the client is getting nothing”?  Many will say “no; the client took the same risk we took and we won.”  Lawsuit Financial says that if the result was disappointing and the lawyer and the client are in financial pain at the end of the case, we should share the pain.  That is the true definition of shared risk.”

Q: What type of lawsuit funding strategies should apply to Mesh cases?

“Well, Jane, you have indicated that mesh cases have a potential value of $40,000 on the lower side of the ledger and up to $450,000 or so for the more serious cases, before legal fees are paid.  Assuming those figures to be true, a client should look at funding, over time, in an aggregate amount that is less than $5,000.00.

“Funding should fit comfortably into potential case value so as not to over-burden the case.  If funding profits double or even triple the advance provided, the amount due will be no more than 1/3 the settled value of the case. Err on the side of smaller is better.  For a case in the $450,000 category, advances should be kept to levels around $25,000 to $30,000 over time.  Again, all participants should desire that funding and profits be kept at levels lower than or equal to 1/3 of case value.

“Seek funding only in “absolute need” situations.  By the way, one way to be “predatory” in the lawsuit funding business is to fund too much on the case.  Funders should remember who is the seriously injured victim in these cases.  Who has pained and suffered?  Who has been waiting years for justice?  Even though it is easy to put oneself in this position, a funder should not want to own more than 1/3 of a client’s case proceeds.

“Predatory” in the lawsuit funding business would apply more to over-advancing than it would to amounts of profit companies charge for risks they take in speculative litigation.  Why would a company that could have easily avoided doing so want to own an amount of plaintiff’s lawsuit proceeds that exceeds the amount that the plaintiff herself will receive?”  ###

What Is A Statute Of Limitations?

Mesh Medical Device News Desk, June 14, 2012 ~ If you are considering filing a legal action, you’ve probably heard the term “Statute of Limitations.”

A “statute of limitations” is a state law that sets the time frame within which you have to file a lawsuit. A filing outside of that time frame may mean it is too late to prosecute the person or company responsible for your injury.  This applies to personal injury or civil law, but there is also a statute on criminal acts. Statutes of limitation vary from state-to-state; the state in which your injury occurred will control your case.

One exception – a murder is a criminal action and does not have a statute of limitations.

A vaginal or hernia mesh injury is considered a product liability case, also known as a defective product lawsuit, and is a civil action.

So when does the clock start?  When the plaintiff (the injured party) knew or should have reasonably known about his or her injury. Some states actually begin the clock when the injury occurred, which may not be the same time when your pain began.

That may partially explain why you see aggressive lawsuit advertisements on television, billboards and flyers. For many people, legal ads are the only way they find out about mesh complications.

Why The Statute Of Limitations Is Important

A plaintiff should be aware of the time limitations within which to file an action because some law firms delay filing or a legal referral service may not be timely in passing it onto the appropriate law firm. It is up to the injured party then to be mindful that the clock is ticking and remain on top of their case rather than hand it off and hope for the best.

This is not intended to be legal advice, just an explanation by a non-lawyer. Check with your law firm to make sure you understand the Statute of Limitations and that they understand the time frame of your injury.

Learn More:

The Statute may change over time, Nolo Press provides a “rough guide” to look up your state. Here.

Findlaw has more on the statutes in your state:

http://law.findlaw.com/state-laws/statute-of-limitations/?DCMP=GOO-LAW_GeneralBroadModifier-StatuteLimitationsGen&HBX_PK=statute+of+limitations

Here is Cornell Law on the Statute of Limitations:

http://www.law.cornell.edu/wex/statute_of_limitations

Subrogation & Mesh – What It Means & Why You Must Understand It

Big Insurance, from Knowledge Safari

Big Insurance, from Knowledge Safari

By Aaron Leigh Horton

Mesh News Desk, October 4, 2016 ~ This story first appeared in October 2016 but deserves to be revived as many are currently in the process of receiving settlement in their mesh injury case. Thank you Aaron!

According to Dr. Shlomo Raz at UCLA, the leading expert for 100% removal of transvaginal mesh from the body, “I think that more than 1 million patients [have polypropylene mesh implanted]! The companies have reported insertion of 250,000 implants per year!  This number is an estimate of the worldwide use of mesh.”

Obviously, that is an enormous number, and when broken down to a daily figure, it represents at least 685 patients worldwide, per day that are still receiving this highly-injurious medical device.  As a result, many victims (more than 50,000 in the U.S. and growing) have filed suit against the six manufacturers of this mesh, most often used in women for pelvic organ prolapse (POP), stress urinary incontinence (SUI) and more and more for hernia repair, performed on both men and women.

What Is Subrogation?

So as some of the earlier cases near settlement talks and bellwether trials are underway, claimants will be wise to understand the components that make up a jury-awarded damage or a settlement figure, negotiated without a jury between the plaintiff and defendants’ lawyers and clients.

Subrogation is an important term that plaintiffs will want to discuss with their legal representation.  Subrogation is a legal term that refers specifically to a third party’s right to recover damages out of a victim’s possible award and/or settlement.

According to Mr. Doug A. Daniels, attorney/partner and a specialist in mesh cases:

“Subrogation refers to the principle that someone who pays another person for damage caused by a third person, has a right to recover those payments from that third person who caused the damage; if the victim recovers an amount from the third person, the party who paid for the damage has a right to be paid back out of that recovery.  Subrogation would apply in the mesh cases as in any other case: third-party payers (Medicare, Medicaid, or private insurers) have and will assert a right to be reimbursed out of the victims’ recovery against the defendants. That right to reimbursement is limited to amounts they paid on behalf of the victims for treatments related to injuries caused by the mesh.  That is, they are not entitled to be repaid amounts out of mesh lawsuit settlements that they paid for treatments unrelated to the mesh injuries.”

In plain English, subrogation means that a health insurer has the legal right to a portion of a mesh-injured patient’s financial settlement.  Understanding the realities of the cash disbursement you may receive is very important.

Insurance Companies & Attorneys

Several entities have a legal right to claim a portion of financial damages a plaintiff is awarded, including:

  • Your lawyer, depending on the language in your contract, even if you do not go to trial but instead settle, with no trial required.
  • Insurance companies; a portion of your cash award will also be subject to subrogation as described above, and insurance companies have the right to place liens on your personal property until they have received their negotiated portion of the award.  Often, your attorney will handle this process with companies who specialize in the negotiation of subrogation.

Tort reform law is different per state.  As a plaintiff, it’s important to know how tort reform law has affected your state’s practice.  For example, in Texas, there is an automatic cap on compensatory damages of $250,000 and punitive damages cannot exceed 3x the economic value lost due to the injury/illness.  As another example, in Georgia, compensatory damages are also capped at $250,000, but punitive damages are immediately subject to a 75% fee, assessed by the State of Georgia.

According to Mr. Daniels, it’s also imperative for plaintiffs to know that, “Medicare and Medicaid don’t even have to demand to be paid back; the law mandates it.”  He’s also not aware of any private insurer that does not pursue their legal right to subrogation.

Health Insurance Premiums Will NOT Be Considered

How does our payment of health care premiums factor in to the equation of what will be recouped by third parties through subrogation?  According to Mr. Daniels, “premiums are not part of the subrogation analysis since [the injured patient] also buys coverage for other medical treatment unrelated to whatever injury gives rise to the settlement.”

Daniels concedes there is a bit of a flaw in that logic since the recoup of financial damages represents the victim’s recovery for more than just medical expenses.  Recovered damages also include lost earnings, pain and suffering, loss of enjoyment of life, etc.  Who’s to say what part of a given settlement represents medical expenses only as compared to other more subjective damages, like loss of future earnings/productivity, loss of consortium, loss of intimacy and the many other harms we know are not primarily medical in nature, but are a by-product of the physical injuries for which the mesh is responsible?

It’s in this area that lien resolution companies step in to work with a plaintiff’s lawyer to negotiate a reasonable recovery to the third-party payer (your insurer) while still reserving a reasonable net recovery for you, the victim.

Aaron Leigh Horton

Aaron Leigh Horton

Sources:

Mr. Doug A. Daniels/Daniels & Gentle Trial Lawyers of Houston

Aaron Leigh Horton is a regular contributor to Mesh News Desk.   This article is not intended to be a substitute for legal advice from your own law firm. Please confer with them about this important topic.

How To Look Up Your Pelvic Mesh Case

                 

Mesh Medical Device News Desk, January 2, 2017 ~ Many of you already know how to look up your pelvic mesh case filed in federal court. Here is a step-by-step way to find it through a Google Search.

This applies only to the cases consolidated in multidistrict litigation in the Southern District of WV. Your editor is not a lawyer so always follow the advice of your law firm.

Welcome to 2017!

This is the first story filed in the new year and it comes from a woman who was having trouble looking up her case in multidistrict litigation in Charleston, WV.

Searching For Court Documents In West Virginia Federal Court

That was the jurisdiction chosen as a home for the thousands of pelvic mesh cases that have been filed so far in one federal court. There were so many in this Mass Tort, that it was decided by the Judicial Panel on Multidistrict Litigation to form a MDL court to handle all of the rulings so they could be consistent.

So if you are filed here, and many cases are, here’s what you need to know:

First- Go to the MDL, Southern District of West Virginia here.  http://www.wvsd.uscourts.gov/

Now – Scroll down to the middle lower half of the page.  You will see a Multidistrict Litigation box.

Click – On your manufacturer. You will need to know this. Do you have your medical records?  If not, please obtain them.  You must keep a copy of all of your records. Do not hand the entire thing over to your law firm. Keep your own copy.

Click – On your manufacturer, let’s say C.R. BARD.

See the Numerical list of Cases in the small red print up top?  Click on that.  It opens up to list 14,799 cases. Total closed as of today (January 2, 2017) is 6,602.

Then Click on the Search in the upper right hand corner.

Put in the last name you are searching, say Smith. Click Search.

You should see all of the Smith plaintiffs listed.  The information includes your case number, the date your case was filed, the defendant, the originating district case number (for example, if you filed in Western Missouri, the case number was different in state court).  And if applicable, the date your case was closed.

That’s it!!

PACER

If you need to look up your case further, you can get a PACER account (Public Access to Court Electronic Records) which is a government site allowing access to your federally filed cases. See PACER here.  Cost is about 10 cents a page, unless it’s a court order in which case that is free.
https://www.pacer.gov/

Finding Court Orders

Also, if you go back to So District of WV you can find in small red print at the top of the page under Orders and see what Orders Judge Goodwin has issued concerning your manufacturer.

Back to C.R. Bard, we see Pretrial Order #232 was issued December 15, 2016 and it is a request by the law firm Motley Rice to enter an Order before the court for a Confidential Master Settlement Agreement between Defendant Covidien and Plaintiffs’ Counsel.

Motley Rice’s unopposed Motion has been granted. Read it here
http://www.wvsd.uscourts.gov/MDL/2187/pdfs/PTO_232.pdf

Covidien is named as a co-defendant in some cases for supplying mesh to C.R. Bard.

See the MND story here:
https://www.meshmedicaldevicenewsdesk.com/new-mesh-maker-covidien-agrees-to-settle-11000-claims/