Settlement Dollars are Slow in Coming in Transvaginal Mesh Claims

MND, Nov. 5, 2015~ Your editor recently sat down at the Mass Torts Made Perfect session on multidistrict litigation (MDL) to hear the latest on the settlements purported to be in the works concerning transvaginal mesh.

Attorney Henry Garrard told the crowd that four of five mesh manufacturers are in the settlement mode.

It started with American Medical Systems (AMS). Judge Goodwin who heads the multidistrict litigation (MDL) in Charleston, West Virginia, has praised AMS for setting forth the first settlement model, though many complain it is short in compensation dollars, certainly not enough for a lifetime of medical management.

Henry Garrard III

AMS – MDL 2325 ~ In April 2014, AMS, now part of Endo Health Solutions, announced $830 million to settle 20,000 product liability lawsuits. That number was upped to $1.6 billion by September to resolve about 25,000 mesh injury claims. See the story here.

The settlements vary and are reached by individual law firms, some working together to hammer out an agreement. The agreements may not all be the same, but regardless, they have been slow in coming. Many women report to MND they have their paperwork yet no dollar amount has been specified.

The higher “Tiers” of injury are worked out individually. The lower Tiers may represent no compensation after a 40% legal fee is removed, along with any outstanding liens or medical bills.

Remember, when you agree to a settlement, you forever give up your right to seek redress through the courts as do your family members. You do have the option to refuse the settlement and insist your law firm take your case to court. At that point you may get pushback from your firm. It’s easier for the law firm to settle and move on, but it may not be in your best interest. They are officers of the court who must act in your best interest! Check with your state Bar Association to see if you can be dropped as a client if you refuse a settlement!

A June 2013 agreement specifies $54,500,000 as a Settlement Fund held in escrow. It requires 95% of claimants to participate. There is no admission of liability by the company in offering the millions to women implanted with the Perigee, Apogee and Elevate transvaginal mesh implants. See the Master Settlement here.

Endo Health Solutions took over AMS in 2011 for $2.9 billion and in doing so acquired more than 22,000 lawsuits claiming the polypropylene mesh is defective and doctors were not adequately warned about the complications associated with the mesh.

Boston Scientific – MDL 2326 ~ Boston Scientific announced it would pay $119 million to settle 2,970 cases back in April of this year. According to Garrard, Boston Scientific is working with national settlement counsel of the Sedgewick firm of New Jersey, specifically Mike Tenanbaum. See him here.

At least 130 cases may be sent back to their own District Courts in the state where they originated in an effort to reduce the load on the MDL in Charleston, WV.

Boston Scientific says it has over 27,000 product liability cases. More than 2,700 claims have been assigned to one judge in state court in Massachusetts. In its August 2015 SEC filing (here), the company says last April it entered into a master settlement agreement with certain plaintiffs’ counsel. It will provide $119 million to resolve 2,970 cases including the federal court in Dallas County, Texas. The company has also entered into a Master Settlement, without admitting any guilt or liability, regarding 1,627 pending cases.

Boston Scientific says it plans “to vigorously contest the cases and claims asserted against us.”

C.R. Bard – MDL 2187 ~ Bard is less than forthcoming about the number of lawsuits it's currently facing and settling in its October SEC report. The good news, according to Garrard, is that Nina Gussack, a partner with the Pepper Hamilton LLP law firm of Philadelphia (here), a settlement firm is helping things along says Garrard and they are about to settle 60 percent of the docket.

Bard was reported to be prepared to settle 500 product liability pending actions for $21 million last year. See the MND story here.

Bard’s October 2015 SEC report (here) says there are about 90 pending claims in federal and state courts involving the Composix Kugel hernia repair products.

Additionally, the company says its reached agreements with 6,470 Women’s Health Product Claims agreeing to pay Medtronic $121 million toward these potential settlements. These are claims not included in the 12,850 claims presently in the MDL, making the actual number of product liability lawsuits murky in this report.

Bard says two subsidiaries of Medtronic (as a successor to Covidien plc) supplied the company its mesh products and therefore has an obligation to defend and indemnify Bard from product defect liability. Bard has reached agreement with 6,470 claims agreeing to pay Medtronic $121 million toward these potential settlements.

While Bard continues to talk to Plaintiff law firms regarding potential resolutions and “intends to vigorously defend the Women claims that do not settle, including through litigation, it cannot give any assurances that the resolution of these claims will not have a material adverse effect on the company’s business, results of operations, financial condition and/or liquidity.”

Bard Avaulta, Miklos and Moore website

Covidien – MDL 2187 ~ The company based in Ireland is now part of Medtronic and two subsidiaries of Covidien supplied pelvic mesh products to C.R. Bard, which is named in the litigation. According to Garrard, they are reaching settlement with Williams and Connolly’s Joseph Petrosinelli (here).

In July of last year, Covidien announced it planned to take $180 million from its third quarter profits to pay the costs associated with pending lawsuits. In July 2015 Covidien and Bard agreed Bard would pay Covidien $121 million toward the settlement of those claims while other claims remain unsettled ( see the Bard story above). Law firms represent about 11,300 claimants and as of September, Covidien has reached agreements to settle about 2,300 of those claims.

See the Corporate 10-Q September 9, 2015 filing here.

See PTO #181 (here), June 23, 2015. Cathy Yanni was appointed the Special Mater for administration of the settlement reached between Blasingame, Burch, Garrard & Ashley P.C., and Covidien. By September, Blasingame, Burch, Garrard & Ashley, P.C. set up an Escrow Agreement account with Wells Fargo bank. Law firms Motley Rice and Beasley Allen also filed motions to establish a qualified settlement fund.

Judge Joseph Goodwin

Coloplast – MDL 2387 ~ The Danish company has been in the settlement mode since day one, according to Garrard, but they’ve not had much discussion of settlement with Plaintiffs’ lawyers. Now they are reported to be in a speed- up mode. See Coloplast Pretrial Order #77 (here).

Judge Joseph Goodwin, who oversees the MDL, says if significant progress is not made in the MDL he will put a half docket in the fast track for work up. It would be on the trial dockets in early 2016. A Minnesota judge working up PSI order in 15 days and pushing discovery. The judge in Minnesota is pushing those cases.

In September, Coloplast announced it would increase its mesh legal budget by $448 million for a total of about $727 million. The company had settled 400 lawsuits last year for $16 million. Coloplast is facing 2,323 lawsuits filed in the MDL and likely more claims globally. Since it is not a U.S. company, there is not SEC report filed. See the announcement here.

TVT Secur, Megamed Service

Ethicon - MDL 2327 ~ Is the ten thousand pound elephant in the room. A trial is set for December for 30 Plaintiffs implanted with the TVT (transvaginal tape) which will be a product defect case only. There are no individual cases. As a sterile design defect the trial is a disadvantage to the Plaintiff, however if they are successful with the TVT trial, it will represent a major problem for Ethicon, a division of Johnson & Johnson.

Ethicon is facing 44,400 personal product liability cases, according to an October SEC report. See it here.

Also set were 200 cases for November addressing the oldest filed Ethicon cases. These are good for the Plaintiff because many of the older cases are the better cases. Recently Judge Goodwin sent out a notice to Plaintiffs' firms to work up another 200 cases and have that to him by November 9. That process puts pressure on the Defendant.

The problem with Ethicon it says it will not settle TVT and TVT-O cases with a product in place and a non-surgical outcome because there is no demonstration of injury, says Ethicon. We are exploring how to deal with that said Garrard.

See Pretrial order #203 which dismisses without prejudice the 87 Plaintiffs listed in Exhibit A attached to PTO #199. That means then can be filed in the District Court closest to the Plaintiff, in this case North Texas. Here is the list of Plaintiffs.

According to Garrard, the mass advertising campaign currently seen on late night television is not helpful to get the Ethicons of the world resolved, largely because these cases dilute the better cases.

Ironically, not five minutes after a conversation with Mr. Garrard, I got a call on my cell phone from “Steve” of Medical Healthcare Center. He told me medical compensation might be offered if I had bladder sling surgery in the past, which I have not. #