Mesh Medical Device News Desk, April 26, 2019 ~ Is the end in sight for pelvic mesh litigation, at one time the largest consolidation of injury cases filed in one court? The resolution of your case may depend on just how seriously you were injured but settlement or trial appears to be on the horizon.
The Facebook message came from a woman who had just received a letter from her law firm. Sounding panicked she asked what it meant.
I reminded her I’m not a lawyer (if I had a dollar or every time I’ve said that I could fund Mesh News Desk (MND) – LOL) and she sent the letter for me to read.
Aylstock, Witkin, Kreis & Overholtz (AWKO) of Pensacola, Florida was her law firm who sent the letter.
In a nutshell it said:
They wanted her to dismiss her Ethicon case without prejudice (meaning it can be refiled after a year), a move Ethicon had agreed to.
The move was to save her money since Judge Goodwin was now fast-tracking the remaining pelvic mesh cases on the docket into Wave 11 aiming for a fall 2019 trial. That meant trial preparation – hiring experts and discovery. By dismissing, she no longer had to comply with the deadlines set by the judge.
She had to let them know immediately. Meanwhile settlement process would continue including talks with the Special Master who is negotiating the final numbers.
But she had refused her settlement.
It felt like a heavy-handed way to force her to accept the Ethicon settlement or else she could be on the hook for tens of thousands of dollars in the “costs” of preparing her case for trial. Not much of a choice.
On the other hand, if she was prepared to eventually take a settlement, but the number still being negotiated, why spend tens of thousands of dollars on experts and the cost of discovery? (travel, depositions etc.) And her statute of limitations would not be effected if she dismissed without prejudice.
Still it felt like a power move, she said, forcing us to settle.
The last part was especially troubling, especially since she was given 48 hours to make a decision.
“Unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice. If you do not want us to dismiss your claim without prejudice in accordance with the above, you must contact us by April 24, 2019, and tell us the same.”
So What’s Going On?
The truth is Judge Joseph Goodwin who has overseen the largest personal injury multidistrict litigation (MDL) consolidated into one courtroom, wants to clear out the docket. He is way past retirement age and has been at this pelvic mesh MDL since early 2012.
Last year he closed the MDL to any new cases after it swelled to more than 104,000.
Then in February of this year, Judge Goodwin issued PTO #328 (here) which says basically – Move it Along!
Get off the “Inactive Docket” Goodwin said to 7,000 mesh injured women. They have resided there as early as July 2017 and have either been settled or are in a settlement mode.
To push things ahead, Judge Goodwin said he had no option but to place the cases back on the active docket and subject them to a vigorous schedule heading toward a fall 2019 trial that would become Wave 11 (Waves are cases consolidated and tried together).
Essentially, he instructed law firms to get your cases ready for trial and be prepared to meet the deadlines he set for trial preparation.
That move is what sparked the letter from AWKO to its clients.
*UPDATE TO THIS STORY* On April 29, Judge Goodwin ordered both sides to quickly and competently settle their cases! He is not kidding here. Here is PTO #336 that says basically a) Stop blaming each other for the delays in settlement and b) “promptly and competently conclude their settlements” if not c) “Unreasonable delays undermine plaintiff’s confidence in counsel and the legal process.”
Aylstock Anxious to Try Cases
Bryan Aylstock told Mesh News Desk he has several dozen cases he is “anxious to take to trial” and will wait until they are remanded back into federal court in the woman’s district.
The letter only went out to women who had indicated they would like to consider a settlement, he said.
That comes as news to the woman who called MND.
She had rejected her settlement and talked to a “very condescending” woman in Aylstock’s office.
“If she’s rejected the settlement the letter will not apply,” Aylstock told MND.
Call our office, he said. Nobody is abandoning clients.
The truth is every woman believes her case is valuable. She has been violated in her most personal places and often abused and abandoned by her doctor.
The truth is, despite her feelings of violation, some cases are considered more valuable than others, and those will be the cases moving forward.
You can blame Ethicon. Its partially-funded medical society AUGS, still calls TVT (Tension free vaginal tape) the Gold Standard and and fully promotes its use.
Ethicon has clearly stated that in the future it will not pay any settlements to a woman with a TVT or a TVT-O (obturator) mesh in place, even though TVT-O has been found defective in a court of law.
And trial lawyers understand a sacrocolpopexy (abdominal placement of mesh) is not as good a case to bring to trial in terms of value as a Prolift POP mesh with serious injuries.
At the end of the day, lawyers want those valuable cases with a number of removal surgeries.
Aylstock says he is flying lawyers around the country taking depositions and spending money in preparing cases for trial.
Vigna Preparing for Trial
Greg Vigna, MD, JD who is active in the Wave discovery process for women with neurological injuries including pudendal neuralgia for Ethicon and Boston Scientific injuries, says he too is ready for trial.
He believes the move by Judge Goodwin is good news for women experiencing severe neurological injuries. They should have their day in court, he tells MND. The year given if one dismisses without prejudice will provide the time necessary for expert reports and life care plans to get them ready for trial.
Vigna, who is a doctor and a lawyer, will also be particular about the cases he takes forward. Because of his background, is getting cases referred from other law firms.
“I’ve been a pudendal nerve expert and I know catastrophic woman when I talk to one. They have complex regional pain syndrome, severe dyspareunia, and severe injuries. A TVT-O with pudendal neuralgia, obturator neuralgia, Prolift devices, Uphold devices, Align devices – We are handling catastrophic neurological complications from all devices. My team and I will be doing these until the devices are removed off the market!”
Referring to the FDA’s recent decision to stop the sale of POP mesh devices, Vigna believes the next thing off the market is the transobturator (TVT-O) devices and the mini-sling.
“Finally, it will be the retropubic slings,” he said referring to devices that the AUGS still calls the Gold Standard. ###