Mesh Trials Ahead with No Prospect of Settling
Mesh Medical Device News Desk (MND), April 18, 2017~Protracted transvaginal mesh (TVM) litigation has many law firms moving onto the next attractive Mass Tort and clearing out their inventory.
What remains when the dust settles?
The online add for the publisher Harris Martin promises an upcoming legal education conference on hernia mesh, Benicar, Xarelto, testosterone drugs, and Bair Hugger – all the latest, shiniest Mass Torts that promise to deliver litigation lightning while reducing risk to the bottom line of plaintiffs’ law firm. Plaintiffs should make something too.
Meanwhile transvaginal mesh litigation, with about 150,000 U.S. plaintiffs, and thousands others overseas, lingers with the largest mesh makers the longest holdouts to the settlement table.
That was supposed to be the aim of the multidistrict litigation (MDL) where the bulk of transvaginal mesh cases, filed against seven manufacturers, are consolidated.
Try a few cases, see which way juries will decide and have that serve as a basis to approach some reasonable settlements in these defective product cases. But that hasn’t happened.
“The primary strategy by Ethicon and by C.R. Bard is to basically say you need money more than we do, you have no prospect unless you take what we offer now, and that’s offensive to me,” says New Jersey attorney Adam Slater.
He is based near the Bergen County court where transvaginal mesh cases will be heard in succession beginning at the end of this year and into next.
Slater says he is insulted by the offers.
“I won’t sit at a table with anyone who says that to me. They have to be reasonable, and what they’ve done is very serious, or else I will continue to prepare to ultimately get reasonable offers for my clients.”
Mazie Slater is one of the law firms still taking transvaginal mesh cases filed by women who claim a lifetime of injuries from the polypropylene implants used to treat incontinence and pelvic organ prolapse.
Slater says he doesn’t see an end to the litigation and adds, “I’m not going to stop.”
Here is a MND story on law firms that remain in TVM litigation.
For the remaining trial lawyers, litigating pelvic mesh cases will continue for years.
The next trial for C.R. Bard is in Bergen County, New Jersey by October 30th, and possibly sooner.
Slater says he is in full scale litigation against Bard with no prospects for settlement.
“Bard said you will never get to trial. I said “Watch me.””
Philadelphia’s Court of Common Pleas has 190 transvaginal mesh cases in line to be tried against defendants Boston Scientific and Ethicon/ Johnson & Johnson. Currently the Engleman v. Ethicon trial is underway.
April 18th, a Pelvic Mesh Meeting was scheduled.
**Update 11 new cases were set for trial as a result of yesterday’s meeting. All but two name Ethicon/ J&J, the other two name Boston Scientific as a defendant. See the schedule here.
In Philadelphia, six cases against Ethicon have a trial date certain. One naming Defendant Boston Scientific is set for March 2018. See the Pelvic Mesh Case list here.
Ethicon/ Johnson & Johnson, has proven to be a holdout, offering a smattering of settlements, particularly on individual cases just before trial. Instead, it quietly took its most troubling meshes off the market.
Boston Scientific too has proven to be tough defendant to bring to the negotiating table.
Mostyn Law is planning a trial against Boston Scientific to be heard in Los Angeles Superior Court, July 31, 2017. Six plaintiffs’s cases may be heard among the possible 247 filed. See JCCP 4733 here.
Another Ethicon/ Johnson & Johnson case is set for trial in Bergen Co. November 27, 2017 with a November 13th date set for jury selection.
Slater says his position with Ethicon is the same – No Prospect of Settling!
“I’m aware of the numbers offered. No way would I ever offer that to my clients,” he tells MND.
With 102,000 product liability cases naming seven mesh makers filed in Charleston, WV, consolidated in multidistrict litigation, there are an additional 1,000 cases naming C.R. Bard filed in New Jersey and another 9,000 naming Ethicon/ Johnson & Johnson in the same court. Some of those have settled.
AMS (American Medical Systems), sold to Endo International in 2011 and stopped making pelvic mesh one year ago. AMS/Endo agreed to a mass settlement of its transvaginal mesh cases. Because of that move, there was no discovery required to prepare for trial, therefore little evidence on which to base litigation.
Caldera Medical has offered about 2,700 women a dwindling amount of insurance money, about $11.75 million, the amount that remained after legal wrangling with its insurance carrier.
Those settlement packets of approximately $4,000 per plaintiff are currently being sent out. It does not include legal fees and expenses, which will cut the settlement dollars roughly in half.
WHEN SETTLING MAKES SENSE
The harsh truth is that most of the 102,000 cases filed in multidistrict litigation will never pass the threshold of the courtroom.
Many plaintiffs refuse to accept the amount of dollars offered in a settlement. When they retained a law firm it was often with the promise of a “million dollar case.”
That is a red flag as no one can promise you the outcome of your case. There are far too many variables, such as a jury, for example. But still, emotions run high when a promise made isn’t kept.
Of the cases tried, most have resulted in jury awards compensating them for pain and suffering, for past and future medical care, and punitive damages.
Then the appeals process begins, which can take years. About four cases that won at the trial level, have exhausted the appeals process and been paid to the plaintiff. Gross v. Ethicon, the first New Jersey case against Johnson & Johnson, is on the eve of paying its $11.1 million jury award after nearly four years of appeals by J&J.
So when do you accept a settlement? For many women settlements make a lot of sense.
If you have a mesh in place and for the present time, are still able to function, a settlement might make sense. A lawyer can structure an annuity so the money is doled out for a longer time and it’s tax free.
There is no waiting years for the appeals process to wind through the court.
There is an immense downside in going to trial that many plaintiffs do not consider. A woman’s life is on display including her most intimate pelvic problems, she lives away from home, maybe for months, must be deposed by lawyers for the mesh makers and probed in a pelvic exam done by doctors for defense. There is always some degree of public humiliation about her weight, or preexisting conditions or her sex life. And there is no telling what a jury will do.
But if you think you have no options but stay with your current law firm, think again.
“I’m hearing stories of women being threatened by their attorney that they will face a penalty if they talk to another law firm. It is unethical to make that threat under New Jersey law. The client owns the case, not the lawyer,” he tells Mesh News Desk. ###