The majority of cases filed in the seven multidistrict litigations (MDLs) consolidated in the Southern District of West Virginia have now been resolved. At one point, that included more than 100,000 individual lawsuits. In the cases that have settled or reached a verdict after trial, roughly $7.25 billion has gone to plaintiffs to compensate them for their injuries, and another $3.75 billion will likely be awarded in the near future.
On the other hand, plaintiffs are left to live with permanent and painful injuries. Some are dissatisfied with the settlement amounts they ultimately received after costs were netted out. In an unusual move intended to address this inequity, plaintiffs’ lawyers have sought to reduce the legal fees awarded to common benefit counsel. Lawyers fighting lawyers over money is bound to get nasty.
Nine years, very complex issues
What began in 2010 with 36 plaintiffs suing C. R. Bard, Inc. over injuries attributable to Avaulta pelvic organ prolapse repair devices, ultimately mushroomed into seven MDLs involving 104,000 plaintiffs suing many defendants who manufactured many different pelvic mesh products. Individual plaintiffs were often implanted with different products manufactured by multiple defendant manufacturers, so their cases crossed several different product lines.
Along the way, both plaintiffs’ and defendants’ cases depended on expert information about urology, surgery, materials, chemistry, and other specialties. Bellwether trials finally brought many cases to settlement.
From a process point of view, the district court was clearly very pleased with the management of the lawsuit.
Small settlements, big jury verdicts
The gross amount of settlement payments may seem quite large to the casual observer. Seven medical device manufacturers, including Boston Scientific and Johnson & Johnson, alone, will pay nearly $8 billion to resolve pelvic mesh claims.
The injured parties’ perspective, however, can be quite different. Although settlement amounts vary with individual circumstances, the average settlement is less than $60,000, according to the New York Times. One woman, who suffered pain and discomfort during sex because of her pelvic mesh implant, had hoped to use her settlement amount to pay for its removal. But after lawyers’ fees and other expenses, her $12,000 payout was reduced to only $3,500 – too little to pay for corrective surgery. In another situation recounted by the Times,, fees and other expenses reduced a comparatively generous $140,000 award to merely $50,000.
Consider, as well, that these MDL settlements occur against a background of far larger jury verdicts. In 2018, a jury in Bergen County New Jersey, awarded a woman who had been injured by her pelvic mesh implant and her husband a total of $68 million in compensatory and punitive damages. A Philadelphia jury recently awarded $41 million to another woman who suffered pelvic mesh injuries.
Even considering the differences in individual circumstances and the possibility that the cases involving more serious injuries may have been more likely to go to trial, the disparity between settlement amounts and jury awards is hard to ignore.
Lawyer v. Lawyer
To mitigate the harm caused by overly modest settlement amounts, attorneys for the MDL plaintiffs sought to reduce the percentage of the total settlement amount that was to be paid to the group of lawyers charged with the task of developing common resources for litigants. They argued for a reduction from five to two-and-a-half percent, but were ultimately unsuccessful.
Living with the damage
Meanwhile, the harm caused transvaginal mesh implants continues for many women. Between 3 and 4 million women worldwide have had mesh implanted to treat urinary incontinence and prolapse. About 5 percent of those have complications, including chronic pelvic pain, erosion of mesh into the vagina, incontinence, obstruction, pain in the groin, hip and leg, and pain during intercourse.
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Vaginal mesh is no longer being used in Australia, Ireland and Scotland. In July, the United Kingdom instituted a temporary ban while long-term damage is assessed. It’s a lesson not lost on American women. In the absence of more effective healthcare regulation, the best defense may be the most aggressive legal posture possible.