Many readers have asked about the contents of the June 2 Status hearing in Charleston, West Virginia called by Judge Joseph Goodwin. He is overseeing more than 77,000 pelvic mesh cases in his federal courtroom. The hearing brought lawyers from five mesh manufacturers (Bard, AMS, Boston Scientific, Ethicon and Coloplast) as well as the attorneys representing plaintiffs.
Among the updates, Judge Goodwin spoke to the mesh – injured women present in the courtroom who had traveled to Charleston as part of Mesh Awareness Movement (MAM). It is clear that behind the scenes, the system is gearing up for mass settlements and how that money will be used to compensate Medicare, Medicaid and private insurance companies.
The following is a summary of the 27 page report, which will be made available to subscribers of Mesh News Desk here.
Bard goes first and plaintiffs’ attorney Henry Garrard said there have been multiple depositions in the Bard litigation over the last several months in relation to Wave III cases. Lori Cohen, representing Bard, says yes they have been working cooperatively with the plaintiffs’ counsel on Wave 2 and Wave 3 cases.
Judge Goodwin thanks both sides for their professionalism in maintain schedules and on keeping cool. (page 5)
Adrianne Theis represents American Medical Systems. Currently over 280 firms are participating in the AMS settlements that are designed to resolve about 95 percent of the U.S. pelvic mesh claims. She said they are authorizing payments for claimants (page 7). “Right now there are 2,500 MDL cases have been dismissed or are currently pending dismissal.” They are aiming to have 8,000 cases on the inactive docket by the end of the month, either dismissed or inactive.
As far as Boston Scientific, Clayton Clark for the plaintiffs said they have now entered settlement negotiations “and have gotten very close to finality with at least three significant dockets, and a process has begun to include, I think, all the remainder of Boston Scientific plaintiffs.”(page 8).
Judge Goodwin says (page 9) “I never dreamed I would have 75,000 cases. I never dreamed I would have seven MDLs, and I never dreamed I would have quite as many good lawyers as I’ve had. I don’t have very many clunkers, and I won’t identify them. We are coming along quite nicely now, and I am in much better humor than you found me before. It seems like the time that I have been on the bench in our past meetings I have been giving lectures. I will try to avoid that today. Thank you very much.”
Cook asks that they be notified when they’re being added to other MDLs as a co-defendant in an amended complaint.
Ethicon plaintiffs are represented by Bryan Aylstock.
“Like the other MDLs, we’ve always gotten along with our counterparts on the other side, representing Ethicon.”
Judge Goodwin: “Always is a slight exaggeration, isn’t it?
Aylstock: “Maybe so. We have had our disagreements, but Judge Eifert’s always been able to handle those for the most part before they get to Your Honor.” (page 11)
“Discovery is ongoing. As the Court is aware, there is a large number of different products involved in the Ethicon MDL, about a dozen, and so we’re continuing to work through the discovery and the privilege log issues. There are trials set throughout the country.”
Edwards v. Ethicon is set for August 24 in Charleston. There is another Ethicon set for Just, August and September as well as one in Philadelphia beginning in December. Judge Martinotti has set a couple of cases for 2015 as well in Massachusetts and “has encouraged the parties through his mandatory mediation program, and that’s progressing.”
Christy Jones, an attorney for Ethicon, adds she thinks the Court is aware of the status of the negotiations. (page 12).
Lana Varney represents Coloplast. She says progress is being made using the early case assessment protocol. Pretrial Order #65 lays out the protocol. They expect to have medical records by July 21. Defendants have agreed to extend the deadline under #65 until the end of July.
JUDGE GOODWIN ON COMMUNICATION
Judge Goodwin made the following statement about lawyers communicating with their clients:
“I think I should say to all of you, some who may not know this, that these lawyers are acting on behalf of not only themselves and their personal clients but as appointed leaders in the multidistrict litigation. Many of the lawyers here today spend a considerable amount of their time ably representing and communicating with lawyers throughout the nation who have these cases and the effort which was just described, recirculating information, is something that goes on frequently. It is frustrating in any case for lawyers and clients to have adequate communication. One of the struggles that lawyers always have is keeping their clients informed. Clients have an obligation in that regard, too. Many clients don’t stay in touch with the lawyers. Some have even moved and not left a forwarding address. But in any event, I applaud the able leadership for their efforts to keep everybody informed.
And then I would encourage the individual plaintiffs who have questions about their case to contact their individual lawyers. The leadership will be happy to try to help you where they can, but your lawyer is still responsible for your case, and they are the ones that should be able to provide you with the answers to your questions. If they don’t have the answer, they will move swiftly to get it for you. “
RESOLVING MEDICARE CLAIMS
Finally, the Garretson Resolution Group has been appointed by the Court to deal with liens from Medicare and Medicaid. The task has been to come up with a consolidated program to resolve Medicare claims when/if there is a settlement. He says they have worked with government to come up with a global resolution program. That results in fixed settlement amounts depending on the degree of injury that Medicare is reimbursed. That resolves the cases without doing one at a time and a verification procedure has been set up to make sure the payments to Medicare are timely on a monthly basis. (page 15) The government has agreed to waive the requirement that all defendants have to report every single settlement to the federal government, allowing defendant companies to bypass the “cumbersome process”.
RESOLVING MEDICAID CLAIMS
Mr. Garretson had good news on the front of resolving outstanding Medicaid claims with individual states. Partially federal funded and administered by the states, any claimant must first verify entitlement. This is done as a lien resolution administrator and must be verified with every state and territory whether any settling claimants are is due an entitlement. Then the states agree to a cap, for example 20 percent, unlike the Medicare reimbursement which is a fixed amount. As long as 20 percent is held back from any gross settlement, the monies can flow to the claimant. When it’s finally adjusted any balance is paid back to the claimant. Checking verification of Medicaid status of any claimant with any single state takes about 30 days.
Garretson says about 40 percent of all mesh claimants have been determined to be entitled to Medicaid so far. Texas, Michigan and California are slow in getting claims data back to the resolution group, averaging about 250 days versus 90 days for most of the states. About 75 percent of state data are received within 45 days. (page 19) The slower states say they are attempting to put the claims information together from several managed care organizations and other areas. Private Lien groups such as the Rawlins Group represent many health carriers. About 75 percent of women are covered by insurance companies. (page 20)
JUDGE GOODWIN ON SOCIAL MEDIA
Judge Goodwin said he understands that frustration that exists in each individual case, the lack of a timely resolution, the frustration of defendants and the lack of timeliness in obtaining information from the other side. Her reinforced “it’s impossible for the entire federal judiciary to try every one of these cases,” but he was encouraged enough by what he heard this day to believe that will not be necessary. Besides, an appeal process will take years. He encouraged the clients in the courtroom today and clients everywhere to “listen to your lawyers and heed their counsel.” They are being paid to give you advice, he said. He called the lawyers involved in this MDL some of the best in the country and he hadn’t found any doing less. Most “lived up to the standards of lawyering in the best sense.”
“In our culture today, news reporting and social media are very important, but importance and accuracy are not always equivalent. I would ask each of you to accurately convey to those to whom you are responsible or are engaged with regard to these matters to convey accurately what you hear, what you’ve heard. I ask you to tell your clients, counsel, what you should tell them. What your best advice is. What your experience and your judgment and your intelligence and your education tells you is best for your clients. And I would ask them to note, to the extent they hear what I have to say, that they should accept your reports and not always what they might hear some other place.”
Judge Goodwin promised trials will continue as will settlements, whether or not both sides are happy or unhappy. #
June 2, 2015, Status Hearing before Judge Joseph Goodwin concerning pelvic mesh.