Multidistrict Litigation – Is It Working for Transvaginal Mesh Cases?
Part Two – Mesh Medical Device News Desk, June 29, 2017 ~ The Multidistrict Litigation (MDL) system allows a select few law firms (about 70) to the top positions in the court structure, no matter where it is based.
An MDL is like a class action in that plaintiffs with substantially similar complaints against an allegedly defective product are consolidated in one court.
In the case of transvaginal mesh, the MDL is in Charleston West Virginia where more than 103,000 cases have been filed before Judge Joseph Goodwin.
According to research done by Professor Burch from the University of Georgia Law School, lawyers from these firms “repeat players,” because they know the ropes, can litigate the cases, but also form relationships with the defense team. Both sides know what the other needs in terms of settlement.
Professor Burch says while individual law firms seek settlements for their clients, lawyers with fewer clients are not usually in such an advantageous position to negotiate and often have to partner with the “repeat players,” to help their clients.
Settlements are private, so a judge in an MDL cannot override a decision as he can with a class action settlement, which is public, and the judge does not have the authority to make sure that law firms are not enriching themselves at the cost of their clients.m
Here is Part Two of our discussion. See Part One here.
Mesh News Desk Editor, Akre Q: -How is the MDL system different from class actions and how might a class benefit the plaintiff?
Burch, A – “The MDL is not certified as a class action, the NFL is an exception.
“I think we should start to file these issues as a class actions. They all have Ethicon in common so let’s try the common questions that relate to the defendant – What did they know and do and when did they know it – to litigate those as a class. Then remand cases to individual courts for individual hearings on specific causation.
“The judge signs off on the settlement. The judge awards attorney fees there may be some medical monitoring on a state by state basis.
“And class actions can be appealed.”
“Unlike a class action settlements, in which Rule 23 requires searching judicial inquiry to determine if the settlement is fair, non-class settlements are private contracts. Attorneys may be tempted to cross the line and ethical boundaries to achieve finality.”
Q: -For the women who’ve been given no option but to agree to a low-ball settlement, can anything can be done?
“For these women, my best piece of advice is to alert Judge Goodwin to what’s happening. These are private settlements and he’s not reviewing them, he is not taking a position, so maybe he doesn’t know what is going on.
“He’s so pro settlement, the MDL panel has the power to remand cases but in the past they’ve not done so without the recommendation of Judge Goodwin.”
Q: – Many women tell me their lawyer never talks to them.
A: – “They never do. Sometimes calls to fancy law firms don’t go to New York. You go to a call center in Dothan, Alabama in a warehouse. Operators are doing the intake form then it’s forwarded to the law firm. For many, it’s a volume business. It’s happening in the Granuflo litigation also. ”
Q: – Can’t lead lawyers within the MDL also work with a plaintiffs’ chosen counsel to best represent the client/injured?
A: – “Lead lawyers replace parties chosen counsel and promote settlement with little oversight. The appointment of repeat players may complicate genuine consent through inadequate representation.
“Dictatorial attorney hierarchies fail to adequately represent the spectrum of claimants’ diverse interests.
“Repeat players trade in influence to increase their fees, collude on private deals with little incentive to derail the lucrative settlement they negotiate.”
Q: – You suggest appointing diverse attorneys who represent heterogeneous clients, encouraging dissent from non-lead counsel?
A: – “Yes. The basic ideas are that all the pressures in our system push lawyers to conform. No one wants to object, they don’t become the squeaky wheel and they don’t get leadership positions. Introduce diverse leaders. Encourage judges to think about adequate representation.
“If you have a class action over hip implant, separate who had had it and who hadn’t had it. DePuy ASR litigation settled revised cases. Non-revised weren’t included in the settlement and can’t get remanded, they are no longer rep the non-revisables and they are languishing in the proceeding. You need someone representing the non-revisables. We need a separate deal for them.
“Once you appoint these leaders, if there is a conflict, no one has accounted for, if someone raises it, they should become a lead lawyer and serve alongside them to rep that group. You have to incentivize people to speak up to get on leadership positions, otherwise you have the same thing over and over again.”
Q: – The MDL was supposed to be for pretrial purposes only but only 2.9% of cases remand back to their original districts. Why?
A: – “Lead lawyers and steering committees conduct discovery, disseminate information draft motions, negotiate settlements and try bellwether cases. They may be more interested in pleasing judges, fostering reciprocity among fellow attorneys and positioning themselves for future appointments, than advancing plaintiffs’ interests. Lead attorney hierarchies have more influence today. They hire the experts, conduct discovery, call meetings, and act as spokespersons for all of the plaintiffs. The individually hired attorney has no power to appoint or discharge the leaders who are in charge other clients’ cases while deterring dissent from nonconforming lawyers.
Lack of remands is part of the problem. You can’t threaten to take to trial unless it’s picked a bellwether cases. That rarely happens. The plaintiff is at a disadvantage.”
As if on cue, Judge Goodwin has issued Court order #262 specifying how the law firms on the Common Benefit Fee & Cost Committee will be paid.
Included in it are orders from as early as 2012 establishing committees, criteria for applying to the MDL and the fee committee protocol.
Accounting firm Smith Cochran Hicks, PLLC will play a major role in distributing the common benefit dollars, 5% of every plaintiffs’ case. See Order #262