Is Your Pelvic Mesh Case Lingering? Are you On this Order?

Judge Joseph R. Goodwin,

Mesh Medical Device News Desk, May 5, 2019 ~ In this latest order from Judge Goodwin, more than 3-thousand woman have been removed from the inactive docket in the pelvic mesh MDL and put on the active docket, ready for trial or settlement.

This will be Wave 12 in the Ethicon MDL and the schedule, if followed by plaintiff law firms, should see thousands of pelvic mesh cases settled or tried before the end of the year.

Can you find your name here?

In Pretrial order #337 (here), filed Wednesday, May 1, 2019, Judge Joseph Goodwin orders 3,264 cases off the inactive docket and tells plaintiff law firms they should be ready for trial.

Of those cases, most are Ethicon (Johnson & Johnson) with an exception of 36 cases filed against Boston Scientific. All are defective product cases filed against makers of pelvic mesh implants used to treat incontinence and prolapse in women.

Law firms representing the 3,264 plaintiffs have to follow the schedule for trial preparation which ends November 25, 2019. After that time the cases will be tried, either in Charleston, West Virginia, or in the home state where they were remanded for trial.

As part of Judge Goodwin's orders, the depositions are limited to 3 hours and she can have four treating physicians deposed.

The November date is when the final response should be in to the Daubert motions- that is the criteria used to determine whether or not someone is an expert witness who can testify in federal court. Is the expert reputable and relevant? Is her testimony based on scientifically valid reasoning and does it apply to the facts of the case? A failure to answer those question can have your expert tossed.

Fast-Track

Judge Goodwin has been on the fast-track to have the cases removed from multidistrict litigation (MDL) in his court where some have lingered for a year or two. At last count, there were 107,136 product liability lawsuits filed against seven manufacturers of pelvic mesh used to treat incontinence and prolapse. Ethicon has always had the largest number of cases filed, at this writing 40,546.

The MDL was created in early 2012 to consolidate the many product liability cases that were being filed around the state for pretrial purposes.

An MDL is supposed to have a few test cases, called bellwethers, to see the relative value for settlement purposes. But Johnson & Johnson,(Ethicon) has refused a global settlement, instead opting to settle the inventory of an individual law firm, one at a time.

In other MDL News- Common Benefit Battle Continues

David Mazie, Adam Slater

These law firms are pushing back against the Fees and Cost Committee (FCC) of the MDL headed by attorney Henry Garrard.

His firm, Blasingame Burch Garrard, of Athens, Georgia is also on the receiving end of $56 million, the highest rate of compensation among the 94 firms involved in the MDL.

Eight law firms are challenging Garrard and the back and forth is full of accusations of bias and greed.

The challengers say they have tried more cases than Garrard, who has taken one C.R. Bard case to trial (Cisson), and that in developing legal theories and in deposing experts and company executives, they have done the bulk of the work that has led to successful plaintiff outcomes.

H. Garrard leaving federal court Charleston WV, July 2013

Those law firms, Mazie Slater and Kline Specter, have concentrated their cases outside of the MDL, in New Jersey or Philadelphia respectively.

They are two of the eight law firms that say they deserve to receive more from the FCC than they've been granted.

Common Benefit Fees

The 5% common benefit fund was set aside from each settlement of jury award, which so far have totaled $7 billion. The common benefit fund is projected to swell to $550 million as the cases continue to resolve.

Judge Goodwin never specified who was to pay the 5%. Some firms have split the 5% with their client, while others pay all of it. More often than not, according to readers reporting to MND, women will see the 5% fee tacked onto their settlement that the woman is expected to pay.

In the MDL, 94 law firms submitted more than 900,000 hours of work which generated more than 199 million pages of documentation, all considered for the common benefit, or shareable. The Fees and Cost Committee (headed by Garrard) reduced the recognized hours to 679,191.20. Many of the objectors were the same firms to have their hours cut.

Kline Specter, Mazie Slater, Anderson Law and a pro se plaintiff all submitted rebuttals to Henry Garrards' argument that their fees and costs should be reduced, filed April 8, 2019. Docket #7816.