Mesh Medical Device News Desk, March 29, 2019 ~ Pelvic mesh manufacturers, who have overwhelmingly lost at trial, must be secretly smiling at the dirty dealings now revealed as some transvaginal mesh attorneys hotly contest the half billion in attorney fee dollars being divided.
In all, 94 firms had something to do with transvaginal mesh litigation at one time or another. Most never conducted a trial or a deposition.
But a lone law firm that led the way in New Jersey, “a catalyst of the overall litigation,” says it is not being fairly recognized by the law firms heading the fee committees of the multidistrict litigation (MDL) as they engage in “self-dealing” and padding their hours.
“Mazie Slater requests a fee award commensurate with its status as one of the few fundamental leaders of this litigation,” the firm says in a March 26 filing.
In a 26-page objection, Adam Slater points to five law firms that will average $41 million in fees, while Mazie Slater’s expenses and hours were cut by the Fees and Cost Committee (FCC) whose members are at the top of the compensation list.
In 2012, the FCC was formed at the beginning of the consolidated cases which eventually grew to more than 104,000 product liability cases filed against seven manufacturers.
Every settlement or verdict contributed 5% to the common benefit fund to be divided by law firms at the end of the litigation to reimburse case costs and fees. Currently, settlements amount to $7.25 billion and are expected to grow as high as $11 billion as litigation continues.
A final recommendation on divvying the common benefit dollars, which could reach $550 million, was issued on March 12 by the FCC and retired judge Daniel Stack.
See MND story here.
In the end, FCC chair, Henry Garrard’s firm (Blasingame) fee was almost nine times greater than Mazie Slater, Motley Rice was 7.73 times greater, Clark Love was 7.17 times greater, Wagstaff Cartmell was 6.14 times greater, and Aylstock was 4.37 times greater than Mazie Slater. All fees had to be approved by the FCC.
Those five firms averaged $41 million in fees, while Mazie Slater’s expenses and hours were cut.
“The inescapable conclusion is that the most important qualification for common benefit fees was a set on the FCC, or a close affiliation with an FCC member” ~ Adam Slater
There is no doubt that Mazie Slater has a long list of contributions that created the successful litigation against mesh maker, Ethicon (Johnson & Johnson).
The Roseland, New Jersey firm has been litigating transvaginal mesh cases longer than any other in the country.
Mazie Slater filed the first Ethicon case on March 27, 2008, (Lombardi v Ethicon), the same year the Food and Drug Administration came out with a Public Health notification warning about the complications of pelvic mesh. That issuance in 2008 and another in 2011, which said mesh complications are “not rare,” started a legal gold rush by firms looking to profit from pelvic mesh litigation.
Slater says consider his firm:
- Tried first cases against Ethicon in New Jersey, 2013 (Gross v. Ethicon, $11.1 million)
- Files first case against Ethicon in Superior Court in March 2008 (Lombardi v Ethicon)
- Questioning 93 witnesses in four bellwether trials
- Developed Tom Margolis and Anne Weber as Expert witnesses
- Had J&J assets considered in punitive phase
- Developed the Prolift trial package, Bard Avaulta trial package
- Taking over 235 depositions
- Mazie Slater accumulated $2.7 million in held costs,
- FCC reduces awarding $1.8 million for costs
In 2012 when the transvaginal mesh MDL formed in West Virginia, Judge Joseph Goodwin expected Adam Slater would be the unofficial New Jersey liaison who would be invited frequently to participate in the FCC.
The plan was that state court work would be valued on an equal basis with the MDL. The New Jersey MDL was formed on September 13, 2010.
Slater says instead he was shut out of the FCC discussions by the 61 attorney law firms that made up the Plaintiffs’ Steering Committee (PSC).
In all, 94 law firms submitted more than 900,000 hours of common benefit time, hours used by each plaintiffs’ firm allegedly to prepare its cases.
Adam Slater tried multiple Prolift POP mesh cases in state courts around the country. The verdicts in the plaintiffs’ favor came from depositions, scientific experts, and strategies used at every trial. Other presentation and winning legal theories were shared by Mazie Slater with plaintiff firms and the blueprint even was applied to TVT cases, since it too is made by Ethicon.
Mazie Slater has yet to lose a case it took to trial.
FCC Chairman Henry Garrard, meanwhile tried one case, Cisson v Bard, the second Avaulta Plus trial (Scott v C.R. Bard in Bakersfield was the first).
One reason many Mazie Slater hours were cut by the committee was because of an FCC issued rule stating that “Once a favorable result was reached with regard to a particular TVM product, no further state court time was considered by the FCC as being for the common benefit.”
If that was true, why then would Garrard receive anything or his work in Cisson? Instead, Slater argues every trial is important and should be credited for its own merits as “each trial refined the attack, putting sustained pressure on the defense.”
This so called “rule” unfairly harms Mazie Slater, he writes.
Aylstock – Putting on Pressure to Up the Ante
Mazie Slater calls it a “disturbing” and “glaring example of self-dealing.”
He is referring to a move by Bryan Aylstock of Pensacola, Florida-based Aylstock, Witkin, Kreis & Overholtz. Aylstock allegedly refused to allow his partner, Renee Baggett, to sign the fee committee’s proposed written recommendations unless his firm received more in fees.
Eventually Aylstock received an increase of about $10 million.
Judge Stack disclosed this conduct, writes Slater, which he was reportedly unable or unwilling to remedy and saying he “was sickened” by this conduct.
Judge Stack has accused the Motley Rice firm of padding its time with “thousands of phantom hours” including time to re-review documents already reviewed.
Judge Stack would only act on pre-approval of the FCC to grant an award and he confirmed additional amounts he recommended for Anderson Law and Bernstein Liebhard, who had also complained they were shorted by the FCC. However, no additional dollars would be given to Mazie Slater because the FCC did not approve the increase.
Slater writes about other alleged improprieties:
- Disparate hourly rates make up another objection. Mazie Slater was awarded an average hourly rate of $202, and $309, while the FCC firms were awarded an hourly rate of $730 an hour, even to firms that took no depositions and tried no cases. The highest hourly fee went to Clark Love at $913 an hour, which tried one case.
- Riley Burnett is a name not heard in this MDL. That’s because he never tried a case, did no significant depositions and worked n Coloplast cases, a product never litigated, yet Slater writes Burnetts’ firm was awarded almost the same amount as Mazie Slater.
- Some of the FCC firms claimed they worked on the Linda Gross case, however Mazie Slater says it conducted virtually all of the discovery and every aspect of the trial with two small exceptions. “No other lawyers made an argument or spoke to a witness, the Judge, or jury,” writes Slater.
- In the Vioxx litigation, Joseph Rice (Motley Rice) objected to what he called “self-dealing” which he said showed a disregard for the contributions in this litigation. Ironically, Mazie Slater points out, Mr. Rice learned well because in the pelvic mesh litigation, the FCC awarded 8 FCC firms (Motley among them) 62.5% of the fund. That averages out of $27.36 million per FCC firm.
Garrard, Rice and Clark alone took in $143,669,635 million, which is 41% of the total FCC fund.
The final written report recommends this allocation be a template for ongoing litigation. Mazie Slater says that is not supported.
The New Jersey firm served discovery requests on the FCC so it could object with information, but that discovery was refused.
Mazie Slater isn’t done.
It will take depositions of FCC members to uncover why its work is not being fairly compensated. It wants materials submitted to the court in camera (in private).
Kline & Specter
Philadelphia law firm, Kline & Specter filed a March 26, 2019 objection to the Fee & Cost Committees recommendation (#7709) in MDL, Ethicon 2327.
Judge Stack proposed to allocate $3,745,000 of common benefit fees to Kline & Specter amounting to 1.07% of the total. It is the same amount set forth in FCC September 13, 2018 preliminary written recommendation (PWR) and the FCC’s final November 20, 2018 recommendation to which Kline Specter objected.
In the 25-page objection written by Lee Balefsky and Shanin Specter, the authors claim Mr. Stack during a January 3, 2019 teleconference stated that Kline Specter’s common benefit fee should be more than $3.7 million awarded by the FCC.
“Instead, Mr. Stack simply rubber stamped his and the FCC’s recommendations.”
He did no independent evaluation, claims the law firm. He adopted the same numbers for 78 of the 94 common benefit firms. Eight of the FCC member firms out of the 94, receive about 60% of the total fund or $219,829,192.
Kline & Specter performed over 32,000 hours of common benefit work including six verdicts for plaintiffs totaling over $146 million.
“No firm tried more cases than Kline & Specter or won more verdicts.”
Judge Goodwin has rejected its motion to appoint a new special master.
Mazie Slater Objection to Recommended Allocation of Common Benefit Fees and the Reimbursement of Shared Expenses and Held Costs, March 26, 2019, MDL 2327, So. District WV #7712 (Pacer account required)
Kline Specter Objection to Recommended Allocation of Common Benefit Fees and Reimbursement of Shared Expenses and Held Costs, March 26, 2019, MDL 2327, So District of WV #7709 (Pacer)
PTO # 332 Order Scheduling Objections Pursuant to Fees and Cost Protocol, March 12, 2019
PTO #333 Order Reappointing Common Benefit Fee & Cost Committee, March 13, 2019