New MDL With the Usual Suspects

//New MDL With the Usual Suspects

New MDL With the Usual Suspects

From whistleblower law

Mesh Medical Device  News Desk, January 25, 2018 ~ The MDL system is handling the bulk of transvaginal mesh cases and if you ask many of the 104,000 plaintiffs, they do not feel they are being adequately served. 

That is not stopping other mass torts from turning to multidistrict litigation (MDL) to handle mass numbers of injuries.  Another is about to begin in Cleveland.   

The MDL process  – here we go again. Forbes talks about the MDL process and Opioid Litigation. 

Location: Cleveland

Time: January 31

Reason : Those gathered will be involved in multidistrict litigation aimed at the nation’s opioid makers and distributors.

They’ve gathered before – Vioxx, Transvaginal mesh, Volkswagens, BP Deepwater Horizon.  The usual suspects are the same – the select few trial lawyer firms who represent mass numbers of plaintiffs.

Elizabeth Burch, Professor U GA Law School

In mesh cases, look at  https://www.wvsd.uscourts.gov/   and click on your particular mesh maker.  In the fine print above “Steering Committee” you will see many law firms who are repeat players in MDL litigation.

Mesh News Desk (MND) has interviewed Elizabeth Burch, a law professor at the University of Georgia School of Law. She is weighing in again her criticism of the MDL system.

She told Forbes these lawyers “form what looks like an oligopoly” referring to the same five lawyers involved in all of the above proceedings.

Opioid litigation will see its MDL gather in Cleveland with five familiar names on the plaintiffs’ steering committee – Mark Lanier’s Texas firm, Seeger Weiss, Motley Rice, Weitz & Luxenberg and Lieff Cabraser. These are among 10 firms that frequently head MDLs.

So what’s the problem?

The MDL system of law was created in 1968 with the intention of streamlining complex litigation, promising to deliver a solution quicker with fewer contrasting opinions in the lower court and streamlining evidence gathering in pre-trial proceedings. See the American Bar Association on MDL here.

In her research, Burch examined 73 MDLs and found that 63% of the available leadership positions were held by the same law firms.  The concern is that a conciliatory relationship with defense might squelch dissent in what is essentially an adversarial relationship. In essence, you must be willing to make a deal.

In return for your representation of a large number of plaintiffs, take a percentage of the settlement dollars, but you must agree with defendants to end litigation. Since negotiation and compromise is part of the process, clients usually get in exchange a less than optimal settlement.

Opioid crisis, NPR

Forbes uses as an example, Propulsid, a heartburn drug. Ultimately only 37 plaintiffs qualified for benefits even though there were more than 6,000 plaintiffs. Christopher Seeger, who sits on the steering committee, netted $26.5 million in fees while clients collected $6.2 million.

Writing in his book Collusion: Judicial Discretion vs. Judicial Deception,” Tampa lawyer Brian Donovan writes his clients were shortchanged by a system that shut him out leaving little action on his cases for seven years after they were remanded back to Florida courts to be tried. Meanwhile 19 plaintiff firms have collected $3 billion in fees for negotiating $20 billion in settlements with British Petroleum.

MND has written about the MDL system and how clients are put into a deal even though it might not be in their best interest.  Read it here.

Opioid litigation seems to be following the same path. Attorneys general are pursuing the opioid industry as are governments, union pensions and healthcare networks. Purdue Pharma is one of the biggest manufacturers and a settlement is expected.

Judge Dan Polster

The Honorable Dan A. Polster of the US District Court Northern District of Ohio Eastern Division is overseeing the Opiate Litigation.

See first meeting of counsel here.

In the U.S. about 50,000 die as a result of opioid use each year. Doctors, government local governments and hospitals are all part of the problem. But Judge Polster doesn’t want to finger-point.  He wants solutions. The judge believe government has the resources to deal with the opioid crisis. But it has not so litigation is the result.

The Vioxx and VW MDL both yielded more than $300 million for participating plaintiff law firms in fees.

During the January 31 hearing, discussions will include the fees private attorneys can gather as part of the settlement process.###

By | 2018-01-25T12:59:03+00:00 January 25th, 2018|Legal News|23 Comments

About the Author:

I’m National News Editor, Jane Akre and I began Mesh Medical Device News Desk aka Mesh News Desk (MND) in the summer of 2011 just after the Food and Drug Administration issued an explicit warning to the public that complications associated with surgical mesh used for prolapse repair (POP) and incontinence (SUI) are NOT rare! That was the starting point for the litigation you see today and thousands of lawsuits have been filed by women whose lives have been altered, some permanently, by the use of this petroleum-based product.

23 Comments

  1. Deb January 25, 2018 at 2:17 pm - Reply

    I have settled my mesh MDL and one of those 10 lawyer groups was my lawyer. I do not feel I received compensation for all I have suffered and continued to suffer. But I waited 10 years to settle. so much for a speedy trail. And because the trial was in New Jersey I had to pay more in percentage of the fees. Most folks I talk to feel its just another system where the client looses and the lawyers get rich.

  2. Advocate January 25, 2018 at 3:17 pm - Reply

    There are so many things that can be said about any MDL. I’ve always said, there isn’t always just one way to skin the rabbit, but usually one best way to get the most meat.
    In looking at Ms. Burch and her vita, you can certainly see her as an intellectual attorney professor. I struggle with the balance of reading and lecturing on a subject verses the practical experience of having practiced in one, even if you weren’t the best at it. We wouldn’t think to have our Chiropractor perform a spine surgery, even though they are very educated about the spine. So I’ll put more weight on the surgeon who has done the operation than the one who watched and read about it.
    Now, I’m again not drawing a disparaging point about Ms. Burch. I just don’t see where she’s had practical experience in a plaintiff medical product MDL. I have not seen her suggestion on a better way to resolve these types of cases. Perhaps it would be appropriate to get something from one of the steering committee members, even if done as a ghost interview for their own protection. Maybe they would fully agree with Ms. Burch, maybe not. What we would know is they have experience.
    Ms. Burch does post on a professional Mass Tort Litigation Blog. She did have an interesting blog post in August last year, dealing with the Yaz litigation and Judge Herndon.
    Perhaps just as interesting and more helpful to the injured here, is the preceding blog of Alexandra Lahav in a discussion about reporters and bellwether trials. Here’s the link: http://lawprofessors.typepad.com/mass_tort_litigation/2017/08/for-journalists-reporting-on-bellwether-trials-.html
    The real takeaway is, this is complex litigation and oftentimes, there are more questions than answers.

    • Jane Akre January 25, 2018 at 5:23 pm - Reply

      Thanks for your thoughts and the link.

  3. Becky January 25, 2018 at 4:51 pm - Reply

    MDL should be changed to IAIB. Injustice At It’s Best. Should be changed to protect the lives of so many that are sacrificed. United States Judicial System should really hang their heads.

    • Kitty January 25, 2018 at 11:31 pm - Reply

      OMG going after drug manufacturer’s?? Go after the Federal Government that has allowed the international drug dealers and…NOW WE have to put up with the stench of stoners smoking that skunky pot because they couldn’t get there Rx for Vicodin. Ha! Take that in your pipe and smoke it.

  4. Still Standing January 25, 2018 at 11:30 pm - Reply

    The tragic victims of this MDL will be the millions of Americans with chronic pain who rely on opioids for pain management. This MDL will make the mesh litigation look tiny in comparison. States are suing the manufacturers, the distributors and the prescribers, individuals will also file suit. There will be an even greater chilling effect as more pain clinics decide to shutter their doors and other physicians will decide that prescribing opioids is just too risky. I have encouraged readers here to start finding other treatments for pain for two years and some said I didnt know what I was talking about, yet here we are. Please, have a conversation with whomever is prescribing your opioid pain medication and start exploring other options so that you will not just be cut off your medication abruptly when you need a refill. This MDL is a game changer. People with chronic pain will be the ultimate losers here as more and more scrutiny is placed on these doctors. It is truly an injustice that people who have quality of life with well managed pain care will be the collateral damage. What as mess.

    • Kitty January 27, 2018 at 7:17 am - Reply

      I am curious who the colluders are behind behind the ridiculous law suit against the use of Opiods. This country is during into a Communist State. So sad for us.

      • Still Standing January 28, 2018 at 8:48 pm - Reply

        Individual state’s attorneys are driving this. They contend that they have lost millions and millions of dollars to the opioid epidemic. And they have. Providing recovery and medical care for for drug addiction is costly. Treatment centers can be more than $1000/day. Much of that cost is in the form of Medicaid payments. But there are also wider economic costs as well in lost productivity, financial burden on families, etc. there is actually a formula called the Value of a Statistical Life (VSL) that attempts to quantify economic loss. It is interesting.

        Individuals who have been harmed by opioids and families whose children died from opioid overdose will also be filing. Insurance companies will file. I think criminal charges will be filed against multiple individuals as well. Im curious about why you are supporting the defense. It is a who’s who of big pharma and the problem was also created by lack of FDA oversight, the same agency that let the mesh community down in so many ways. Why would you support mesh plaintiffs and not support plaintiffs in this opioid MDL?

        • Advocate January 29, 2018 at 5:10 pm - Reply

          SS, you are quite right in your post on who the defendants will be. City, County and States will be the first bite of the apple. They are currently the ones who are best vetted to lead. The difficulties in the individual cases will be trying to decide who was indeed addicted due to prescription and who might have been predisposed by other drugs.
          Unlike mesh, there will be a criminal element to these cases and there will most likely be some fall guys. Far fewer than there should be and the first is yet to go down.
          To give some perspective, I’ve seen the medical records of clients where they would go from hospital to hospital ER looking to get the opiods. The records don’t transfer though the system that fast so as long as they are not of the same network, nobody knows until too late.
          There is a stretch of highway in Florida, Hwy 75 to be exact, that runs from Tallahassee at the northern end of the state, all the way down to Fort Meyers on the southern end. This Hwy became known over the last decade as the Opiod hyw. There were “pain clinics” that popped up, literally on off ramps, that were nothing more than prescription mills for the opiods. When things like this happen, good, honest and needing people will get swept up in the turmoil. It isn’t fair but that’s the way it is. The total number of potential opiod abuse victims total into the millions, dwarfing any other litigation of our time. Oh and by the way, there won’t likely be money available to those affected. That money will be gone to the government entities first. Most of the physically needing victims will fall back into government assisted medical processes. It’ll be accounted for in the settlements to those govt services.
          My personal bet is, there will be a pharma manufacturer or two, who will go to their knees on this one.

          • Jane Akre January 30, 2018 at 10:18 am

            Thanks Advocate. Did you see the 60 Minutes report on McKesson and how the DEA went lightly on it in the height of the opioid epidemic?

            https://www.cbsnews.com/news/whistleblowers-dea-attorneys-went-easy-on-mckesson-the-countrys-largest-drug-distributor/

          • Advocate January 30, 2018 at 6:47 pm

            Hi Jane, I did see it. There is/was too much money being funneled to both sides of the legislative isle at that time, to have much impact. I don’t believe that will be the case today, as many of the DC crowd have already taken public positions. Just my feelings though. Wouldn’t be the first time that group walked back on a decision.

        • Kitty January 29, 2018 at 8:56 pm - Reply

          Quite Frankly I think alcohol is much more dangerous. Smoking and alcohol abuse = Cancer.

  5. Dawn January 26, 2018 at 12:10 am - Reply

    How can an MDL ever work? If the defense knows they are guilty, they will always take the trials clear to the fine line … then do the secret settlements…. then start the whose process all over again.. and again to prolong to a point hoping women and men will just die off.
    Until they make them take the trial or settle before you see where the jury is leaning.. it will stay corrupt..
    Mesh is toxic

    • D January 27, 2018 at 9:12 pm - Reply

      Well said. Us injured are the losers in a dusted that set up to provide justice from our injuries!

  6. Kitty January 27, 2018 at 7:22 am - Reply

    No doubt with this opiod MDL in the works…itm was the reason J and J declined to buy PfIZER. AS FOR ME… i will be on the side of the defence this time.

    • Still Standing January 28, 2018 at 10:28 pm - Reply

      J&J did buy part of pfizer for almost 17billion a decade ago. They ourchased Pfizers Consumer Health division, which is the otc products like Listerine and Visine.

      • Kitty January 29, 2018 at 5:43 pm - Reply

        It’s too risky today though.

  7. anonymous January 27, 2018 at 1:01 pm - Reply

    I don’t understand how the attorneys can be paid more than the injured? I don’t understand how it seems that the attorneys who represent us can also be the ones who fight to get a bad settlement for us. Who pressure you by saying you better take this one it’s the best you can get. What about this is fair? The new “ME TOO” movement should motivate some of us to fight and say look at what they are doing to women! What has happened to our Judicial System to protect the injured?! Especially those who have been permanently crippled by mesh. If we don’t speak up and fight this we will be run over like a dead cat in the road. This is wrong and I think all the MDL does is make money for attorneys. Something has to be done, somehow this needs to be brought to light what we suffer and then in the end how we are defeated into taking a few dollars. I think ethics need to be looked at here and possibly there is a very thin line in attorneys possibly breaking the law by pressuring people into taking settlements. There has to be someone who will investigate this. No judge not even Judge Goodwin or the attorneys involved are completely above the law!

    • Advocate January 29, 2018 at 5:36 pm - Reply

      Anonymous, before you go totally off your road on attorneys who haven’t been paid a dime since they took your case, but have paid staff for years to take your calls or ignore them, to promise something or not promise, and to deal with paperwork or not, perhaps you remember you signed a contract and it contained all this information. Remember?
      So let me offer you a couple other options that are used in the legal field for handling other types of litigation cases. It starts with my hourly rate. Let’s say I’m not very good so I charge a 100 bucks an hour. Every time you call, the clock starts. Every time I have to respond to inquires from the other side, the clock runs. So to get this party started, how about you hand me $50,000 to get started and I’ll tell you when to send me more. Of course I’ll send you the bill so you can see what I’m billing for. Oh and by the way, there’s no refunds and if you lose or I can’t get a settlement for you, well that happens sometimes.
      Now the other option is, you can represent yourself. You won’t win anything and nobody will be including you in a settlement. The manufacturer will send you so many notices of procedure that it guarantees you to miss a deadline and lose your case on a technicality before you are even started. Now if you survive that, remember you have to pay the expert witnesses for their time in deposition, airfare, hotel accommodations, as well as your own. Plus you’ll be required to pay them for their time when they testify on your behalf. They will also want that money up front, so figure a minimum of $25,000 per witness and you’ll probably have two or three. It wouldn’t hurt for you to brush up on your sciences too, so the jury will know what you’re talking about. You can be sure the defense understands their version of the science.
      Now, about those greedy do nothing for you attorneys…

  8. anonymous January 29, 2018 at 10:48 am - Reply

    Here is the address for the Judicial panel on Mulitdistrict Litigation Panel for those who want to write a letter and file a complaint

    Panel Executive: Thomasenia P. Duncan

    Mailing Address

    Thurgood Marshall Federal Judiciary Building
    One Columbus Circle, NE
    Room G-255, North Lobby
    Washington, DC 20544-0005

    I believe this is the correct address

  9. anonymous January 31, 2018 at 8:31 am - Reply

    Advocate I am not mad at my attorney but at many of the attorneys of my mesh friends who will not call them. Will not answer emails or phone calls. Potts law firm is one of the worst. Don’t tell me that these attorneys have not threaten and bullied people into taking settlements. I would call your attention to Jane’s article Hard lessons learned (just search for that and you will find it. How is it they walk away with 40% and the injured walk away with $740.00. So dont tell me the poor lawyers dont get anything. If they do their job and fight for us even up to taking it to court then they will fair much better than the average mesh victim. There are many good attorneys out there but most were smart enough not to get involved in this mesh mess. The settlements to those who have been permanently disabled, have UTI’s continuously, lost their husbands and the list goes on and on and they are told to bad take the offer of $40,000.00 it’s the best you’ll get. We all know this will never be fair for the victims. So the next time you see some old lady homeless on the street you might think of all the people who will sooner or later end up that way thanks to the greedy Pharmaceutical companies, and the attorneys who only want to make money and could care less about he injured women who will suffer the REST OF THEIR LIVES! Until you actually live it in your own body you will never understand why we are so angry. This is the United States of America and people should not be treated this way!!!!!

    • Advocate February 3, 2018 at 7:57 pm - Reply

      Anonymous, I appreciate your concern about others as much as you do your own health issues. Let me attempt to clear up one misconception.
      Your physical and mental suffering is tragic and personal. I do not have to experience that pain to have compassion for your pain. In fact, your pain may share similarities with your mesh friends, but yet manifest and have a very different intensity, making it even more personal for you and them.
      As to the real issue of your original post, attorneys and money, lets talk about how you get your facts. The internet is a unchecked highway of information. It works for both good and bad. People who post personal opinions and partial facts or cherry picked information if you will, have little to no accountability. Jane and I have, I believe, a very professional and open relationship about law and medicine and their intersect.
      I have had moments in conversations with Jane, that I voiced concern that this blog will occasionally propagate misinformation. Not intentionally, but through caring and compassion, even a desire to support another’s feelings no matter how distorted those feelings might be. So your reference is to an article that Jane posted. Jane doesn’t vet anyone here for factual accuracy for one reason only. She wants you to speak freely about your feelings and dealings, so that it might help others. That’s not the same as posting an unbiased story, flushing out all sides equally.
      So you have some friends who use a firm that they believe isn’t being a good advocate for their issue. You hear their side and take that as gospel. I know you do because you you don’t speak to their counsel. Client attorney privileged. Jane doesn’t speak with them either. Certainly not on record or on a specific case. So you have half a story from how many friends? 100? Doubtful, but let’s say for the sake of argument it is. That means there is 100 countering opinions of the facts coming from those law firms and nobody on this blog can really know the truth about those individuals and their circumstances. To that, I think we can agree.
      By no means do I want to defend all attorneys. There’s bad just like every other field. But to be fair, there are bad clients too. They don’t follow directions, want to be or believe they are the most important of clients for a firm. The firm should treat all of their clients with the same courteous service regardless of the value of a case. But the client needs to understand their personal role in this as well.
      I digress. The fact is, I have no idea your friends circumstances that they claim, creates only a return of $40,000 offers. I know how some cases ended up at that number but they were a very specific set of circumstances, not typical to the majority of mesh cases. How do I know this information? Because I’m involved with 1000’s of these cases, not 100. Your sample size of friends and their experiences cloud the facts. I’m sure this won’t change your belief in your narrative, but please consider there is an alternative side to the story.
      There have been some low settlements negotiated and there have been really great ones negotiated in this MDL as well. The problem is, you don’t hear enough about the good ones so your information is restricted to the lessor settlements. There’s not the badgering that you’re believing to be rampant in these settlements, but you need more balanced reporting (that’s not on Jane because the other side doesn’t want to be quoted here for litigation issues) or a larger sample size to know that. Not saying your friends experiences here aren’t reflective of them, but not reflective of most.

      • Jane Akre February 4, 2018 at 10:23 pm - Reply

        Advocate- You’re right. I don’t “Vet” people for their feelings… those are their feelings, but I do try to interject some balance as you do too. This entire chapter is a mesh mess and I don’t think we can blame anyone for feeling like they’ve been thrown under the bus. Especially as time passes, some of the settlement dollars are getting pretty lean…They were a bit better earlier on it seems. I hear the numbers…. How about $2,700…. for one of the latest. I can’t even imagine how she must feel.

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