Mesh Medical Device News Desk, May 7, 2018 ~ Many readers of Mesh News Desk promise they will not take the paltry settlements being offered in pelvic mesh litigation.
They are left as women in limbo, not set for trial, not heading for a realistic settlement, not knowing what their future holds.
When you signed up with a law firm, you might have been told that you would have your “day in court.” You may have even been told yours was a “million dollar case.” No one knows that for sure and such a claim of a certain outcome is perhaps a sign that you should consider if that law firm is the right one for you.
So can you change your law firm? Attorney Michael Monheit, who helps market Mesh News Desk and is also a trial attorney weighs in with editor, Jane Akre. He is one of the few lawyers remaining still taking pelvic mesh cases.
Image: Wiki Commons, Cynthia Magana
Monheit: “In an ideal world, I wish we could turn back time and explain this litigation so you would have realistic expectations. Whatever you were told in the beginning, every mass tort contains some realities. For example, at least one-hundred thousand women were injured by pelvic mesh – that is a fact. Some law firms signed up thousands of cases, some just a few. Some may have intended to settle those cases and perhaps never take one to trial. Others planned to select a few for trial as “bellwether” cases to help determine or estimate of their worth for settlement purposes.
My frustration is there are hundreds of women in the same boat saying, “I don’t want to settle.”
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Akre: What will happen to those women?
Monheit: “I’m afraid most of them will end up as dismissed cases.
“It is unlikely you will find another attorney as rarely will an attorney want to represent someone who already rejected a settlement. And you likely can’t spend a couple hundred thousand to go forward alone. What that results is injustice upon injustice. Thus, going it alone is not much of an option.”
Akre: Doesn’t a lawyer have an obligation to represent you until the end?
Monheit: “Most firms have within their fee agreement the right to withdraw from a case, and thus have informed clients of this possibility. Some might argue this is unfair to clients, others might even argue it is not ethical.”
“However, the motion to withdraw would be approved by the Court, so it is unlikely that this will result in any ethical issue for the lawyers seeking to withdraw from the case.”
Akre: But you understand most women want their day in court.
Monheit: “Yes, Your story deserves to be heard. Often the other women who have gone to court have received favorable awards, even though they will have to wait years to see any money as the appellate process plays out.
“But let’s look at the numbers.
“If all of these cases actually went to trial, or consider even 30,000 cases, (there are many more) and you gave 10 judges 3-thousand cases each, if those judges could try six cases a year, it would take those ten judges 500 years to get through! You can see the impossibility of having each case litigated.
“Your attorney may advise you to settle your case since there are so few they can take forward to litigate.
“It is highly unlikely that new firm would want to step into a case where you have indicated you would not settle.
“We have limited time in life and must choose our battles carefully. I urge you to consider this for yourself as well.
“Ask yourself – What is your goal? If the goal is to be part of a movement that in the aggregate is holding the defendants accountable, then you are likely accomplishing that with your claim. If your goal is to receive what feels like full compensation for your injuries, then I doubt it is likely you will achieve that goal.”
Akre: We know that firms settling cases must agree to about 95% of their clients agreeing to a settlement. Defendants require that. Why is that so important?
Monheit: “Manufacturers want to know that they are obtaining a certain degree of resolution, or otherwise may as well keep paying their attorneys to defend the cases.
“To achieve these percentages, in order then to help the vast majority of their clients who may want to settle, even if not for as much as they would like, the attorneys may need to withdraw from most cases where clients do not want to settle.
“Put another way, imagine if you are the client who wants to settle. Your lawyer may not be able to settle your case because of clients who insist on going to trial.
“Coming back to the issue of finding other counsel, you are likely to encounter the same issues. These firms you are reaching out to are likely to already have other clients. Thus, it is not likely that this lawyer would be willing take on a client who has already demonstrated an unwillingness to settle their claim, as the law firm does not want to jeopardize the ability to settle the claims of clients that they already represent and who have expressed a willingness to settle their claims.”
Akre: MND has told a story of a women who is going it alone, Pro Se, after she asked her two law firms to drop her. Does she have any chance of representing herself in court?
Monheit: “While I admire and honor her determination to see this through, my common sense tells me that she is facing a battle that is almost meaningless to the mesh makers and their team of high powered attorneys and difficult for her.
“It is distressing to know that this world has wrongs that at least in our time or in ways we can see don’t make sense and don’t seem to be righted. They are like weeds that keep growing. They are wicked who prosper and may be cut down later, but often not in our time. The underlying sense or purpose of this is simply not revealed to us for now.
“For each injured mesh victim, your story deserves to see the light of day, but I think that there are easier ways to tell your story about any mesh maker than putting yourself through a Pro Se litigation process.
“Here are some things to consider…
- You are going to be to a certain degree outside the typical benefits of the MDL process – it will not be tailored to your needs. Rather, you are going to have to fit into your life to the court’s deadlines and requirements. Do not expect that the judge make any exception for you, the Pro Se plaintiff. The system is the same for everyone. That is why people hire lawyers who know the system – because the process is complex.
- If it does not work out, you don’t get to do it again. While lawyers can survive if one case doesn’t work out, because they are working on many and can spread the risk, you only have your one chance at your one case. And it is so much more so the defendants, who have thousands of these cases and can afford to win some and lose some.
- It is unlikely defendants will want to settle with a Pro Se plaintiff. They know that you are not coming at the case from a position of strength. They know that they can make this very hard for you.
- The MDL work product may not be shared with a Pro Se claimant, since you did not pay for it. That may mean you have to create on your own, essentially duplicate, what has been accomplished by the MDL.
- As far as the costs – Depositions – you will have to figure out how to prepare for them (know the science) and will need to compensate medical experts. Typically this could cost more than $10,000 for each physician. To testify is $1,000 an hour on average.
- Travel – There are costs to get to the deposition and retain a videographer and court reporter. You will need a location, a hotel and airfare.
- I would think the above could cost $100,000 – $200,000 to prepare a case and take it to trial.
- Will your doctors agree to testify? If not, are you prepared to file the motions in court to compel them to do so? Will they cooperate with you and your questioning?
- How will you present yourself as a witness?”
Akre: So it doesn’t sound hopeful? How can these women give up and take a small settlement?
Monheit: “Defendant manufacturers are corporations and as such do not have feelings. Their attorneys will get paid win or lose. They want to win as much as you do. They have more resources than you do. The company likely sees this as a cost of doing business. Companies don’t have souls. They make money. They don’t apologize.
“Your story is important and deserves to be told. Every mesh story is tragic and deserves to be told. Thousands of them! The question for me is do you get the most benefit and do the most good in this Pro Se fight, or is there a better use of your time and energy to tell your story and impact the world and your life going forward in a positive manner.”
Akre: What might she do to direct her energies to right this wrong if going Pro Se isn’t an option?
Monheit: “Lawsuits are a part of the picture, as in the aggregate they create a significant financial penalty on the manufacturer. But a Pro Se plaintiff has little chance of moving the company into action.
“Things we can do as individuals include the following: get active in the political process, organize lobby days, petition Congress, run for office, find a media outlet to target, march on insurance companies, organize boycotts, change the laws. These are all places where energy could be focused so we can change the law and insist on medical coverage for harm from devices, paid for by device manufacturers, since they got you here in this difficult situation in the first place.
“As the laws stand now, there is not enough regulation of these devices and we need people to continue to speak out.”