Mesh Medical Device News Desk, July 10, 2019 ~ How long have you waited for your pelvic mesh settlement and what do you hear from your law firm? In most cases, the mesh victim is met with a wall of silence, but how has that benefited you?
It is the most common warning Mesh News Desk has heard over the years from women represented by law firms representing them in pelvic mesh litigation.
“Don’t talk to the media”
“Don’t go online or post anything”
“Stay silent or you may lose your money”
Advocating mesh awareness is my life, says Jan Urban. “I’m not afraid of the big bad wolf.”
Instead of keeping quiet, after her December 2011 implant with an Ethicon Exact sling, Jan Urban took to the internet, teaching herself how to make posters with mesh awareness messages. She has posted thousands on Twitter and on her Facebook page Life Life Mesh Free.
At one time, her Twitter account had 750,000 impressions a month.
Her message, “Say No to Mesh!”
“We are lifetime wards of this healthcare system that harmed us for profit.”
Ironically, even as keeping quiet was never her style, Jan’s case is being worked up for trial, while thousands others have settled.
And as settlements have been outrageously disappointing, averaging around $40,000 (half of that after everything is subtracted), more women than ever are speaking out.
A 37-page lawsuit [4:19-cv-02148], filed in the Southern District of Texas by four former clients is pushing to break the silence.
Four women claim that the Houston firm of Clark, Love Hutson (CLH), along with Lee Murphy Law, allegedly missed deadlines for filing cases and tried to hide that fact by filing them in state court, up to 99 at a time.
A case that’s blown its statute of limitations (SOL) is essentially worthless, but the firm allegedly packaged valueless cases with multiple revision cases, in essence lowering the value of the settlement overall.
The complaint says clients weren’t told and given a chance to opt out and find another attorney. Missing a SOL is an inexcusable offense for a professional law firm and a breach of a fiduciary duty owed to a client, according to lawyers speaking to MND.
It could affect 26,000 claims representing more than $250 million in attorney’s fees. A forfeiture of fees is one remedy to a breach of fiduciary duty.
In response, Clark Love Hutson’s lawyer, Dale Jefferson, of Martin, Disiere, Jefferson & Wisdom, says the lawsuit is factually inaccurate and “conspicuously absent from the plaintiff is the mischaracterization about the statute of limitations, are the facts regarding tolling agreements entered into between the plaintiff counsel and the mesh manufacturers. Those are the actual facts.”
“We believe the court will find this settlement was fair and reasonable and in the best interest of all of the women who settled their cases.”
Tip of the Iceberg
At least two Houston law firms are named and the suggestion is that as the pelvic mesh mass tort exploded, other firms amassed hundreds if not thousands of cases without hiring the appropriate support staff to professionally process the claims.
Taking 40% from a large number of cases can be just as profitable as going to trial, which is never a sure thing.
“The women are the biggest losers in this entire process,” says Jennifer Banmiller of Periscope Group, advocates for consumers.
“These women were not properly advocated for with some of these firms that took on and bragged about having tens of thousands of cases. A few were focused on lining their pockets and a big leadership fee rather than women.”
The Women – Given No Choice
Some women have reached out to Mesh News Desk to share their story. Most do not want to use their real names because they are still involved in litigation. Their stories are similar to most of the settlements in the pelvic mesh tort, disappointing and not at all reflective of the degree of injury.
CLH dropped “April” as a client after she refused an AMS mesh settlement of $13,000.
“Take it or leave it,” April says she was told.
“My bladder was falling out. It was $13,000, take it or leave it. I said I’m out.”
April found another law firm to represent her in, not only her AMS case but in another product liability case against Boston Scientific. That firm filed both cases in the multidistrict litigation in Charleston, WV.
Mesh News Desk checked with April’s docket and it turns out the AMS case was never filed in West Virginia at a time CLH was threatening her to “take it or leave it.” In fairness, the docket may not reflect an agreement between the manufacturer and the plaintiff’s attorney that essentially stops a statute of limitation from expiring, known as a tolling agreement.
When the second firm finally reached a settlement on both cases, April says CLH reached out to take a portion for both mesh cases – 20% of the Boston Scientific case and a finders’ fee for the AMS case.
April asks why.
“How can they do they, they didn’t refer me? They didn’t represent me in Boston Scientific. I never got a case number and only got two letters the whole time. I never talked to an attorney, never received a phone call back. I’m not sure I was ever filed.”
“Jenny’s” case was settled by Clark Love Hutson but in the years she was represented she says she never talked to an attorney.
Referred by another firm, Jenny wanted to be individually represented, not amassed with other cases. After her deposition she thought she was being readied for trial, but instead, the law firm unexpectedly settled her case without ever contacting her.
“I never talked to CLH. They were supposed to update me every 3 months. That never happened. They didn’t want me to talk at all. The reason I’m signing is because I don’t have a choice. I was told my case could take five years to go to trial. I might not be alive in 5 years. I think I was misrepresented. I don’t agree how it was handled.”
Making matters worse, Jenny is still waiting for the second payment and has no idea what is the holdup.
She is now asking for payment with the interest that has accrued to make up for the executive salary she once earned.
“Rose” was referred to CLH after her first law firm passed her on. She always thought she was going to trial and was disappointed that she was put into the settlement group.
Rose says she never felt bullied by CLH but there was always the suggestion that she have another pelvic mesh removal surgery. ‘We know a lot of good doctors,” she heard more than once.
“I knew what they were suggesting – the more surgeries, the greater your settlement would be. I was not willing to climb back on the table for cash.”
Even though she had a number of pelvic surgeries related to her Bard SUI pelvic mesh, none counted toward her final settlement, representing one mesh removal surgery, a mid-five figure amount. She accepted it receiving roughly half.
“I never felt mistreated until the final settlement. They took 40% and didn’t fight for me. I was willing to go to trial and thought I was going to have my day in court. I was disappointed they gave me away. Like the doctor, again there was no informed consent. I’m pretty beat up and worn down. This has changed the entire court of my life.”
“Rebecca” and her husband had filed for bankruptcy years before Clark Love Hutson represented her in her pelvic mesh defective product case against AMS.
By March 2015, Blake Deady of Clark, Love & Hutson was employed to represent the bankruptcy estate in this litigation. He wanted his firms’ fees of 40% amounting to more than $39,000 along with out of pocket expenses amounting to slightly less than half of her settlement – a total of $45,000.
One day she got a package from CLH.
None of the fees or bankruptcy was ever negotiated down “They didn’t do anything but take the money,” she says.
In most cases, a bankruptcy can be reopened if there are newly acquired assets, even years after it is filed.
“CLH said if we didn’t all agree to the lawsuits, they would drop us and we would have to start over again. No, I never talked to an attorney, but the office always called me back, but it was a legal adviser. They never wanted to meet with me.”
“Suzy” says CLH took half of her mesh-in-place settlement. At $16,000 after the 40% legal fees, the 5% common benefit fee, expenses and referral, she received just over $8,000.
She is still sick and wants a mesh removal surgery but can’t afford one.
“Right now I don’t think there is much I can do regarding my settlement. Seems like I just picked the wrong attorneys and I have no money to really challenge any of it. I just feel like they took my case for their benefit. Why do they get half when I gave them my records they couldn’t seem to get?”
“Evelyn” then thought about changing law firms so she asked for a copy of her file from a different mass tort law firm. She finally received the emails in an envelope along with a surprise – inner office emails where they talked disparaging about her.
“I’m pretty sure they didn’t intend to send this but they called me nasty names, a pain in the butt, and that they are tired of dealing with me.”
When she finally gets her check she plans on filing a complaint with the Bar Association and asking that her legal fees be returned.
“After five years your patience goes out the window. We are a way to make money. It’s unfortunate. I hope more women get a copy of their files so they can see what’s going on.”
Getting Your Records – Know Your Legal Rights
Asking for your records is your right! It is your case and you are entitled to it. So here is how to proceed:
Send a certified letter to your law firm requesting all of your records, they belong to you! Remind them how often you’ve tried to contact the firm to talk to a lawyer. The request should be for A) Your Contract, B) Settlement Agreement, C) Filings in court along with the date
Give them a deadline by which time to comply and keep a copy of the formal demand letter and provide a date by which time you want to receive your paperwork. If that date is not met, keep a record of that as well.
Check your filing date of your lawsuit, if there is one and compare that to the date you signed your retainer agreement
Check your state SOL rules for personal injury, See if you fall within the (2) years!
Ask if your case is under a tolling agreement, that is, the statute of limitation is on hold.
Make sure you have a case number. If not, your case may never have been filed!
For newly implanted people who are just considering filing a lawsuit it is important to negotiate going into a retainer agreement!
Know your mesh type, and mesh manufacturer
Retain your medical records and all of your records, keep copies of what you’ve sent them
Negotiate the best terms going in. Ask for a reduced retainer fee of one-third. Make sure you understand what expenses are covered under your retainer agreement and which will be extra. If 40% will that include expenses? Can expenses be capped?
Who will be responsible for the Common Benefit Fee? Ask that you pay 1% while the law firm covers the other 4%
Know your case number and where you case is filed, obtain a PACER (Public Access to Court Electronic Records) account to follow your docket. The cost is ten cents a page. See Pacer here… https://pacer.psc.uscourts.gov/pscof/forgotPassword.jsf