Women Who Sued Makers of Pelvic Mesh Are Suing Their Own Lawyers, Too
By Matthew Goldstein
A nearly decade-long legal battle over the harm inflicted on tens of thousands of women by surgically implanted pelvic mesh is moving away from manufacturers and toward the lawyers who helped the women bring their cases.
In recent weeks, women who received some of roughly $8 billion in settlements have sued their lawyers, accusing them of improperly enriching themselves with excessive fees or stretching themselves too thin to properly handle the pelvic mesh cases.
A potential class action lawsuit filed on Monday in state court in New Jersey contends that the 40 percent fee a group of law firms charged about 1,400 clients violated state law, which caps fees in personal injury lawsuits at about 33 percent. A separate suit filed in federal court in Houston on Thursday alleges that another group of firms took on so many cases that they missed filing deadlines for hundreds of women, potentially reducing the value of their claims against the mesh manufacturers to virtually nothing.
“Lawyers should know the rules, and they are supposed to follow them,” said Adam Slater, a lawyer whose firm filed the potential class action in New Jersey. “A lot of the problems start with firms taking on more cases than they can reasonably handle.”
The suits against the personal injury firms, which generally allege a breach of fiduciary duty and negligence, are the latest twist in the pelvic mesh litigation, one of the largest mass tort cases in history.
More than 100,000 women have filed suits in federal court and thousands more have done so in state courts. A half-dozen medical device manufacturers, including Boston Scientific and Johnson & Johnson, have agreed to pay billions of dollars to tens of thousands of injured women. Lawyers have said in court filings that the final tally could exceed $10 billion. Three dozen women whose cases have gone to trial have won an average award of $14 million.
The big settlements drew interest from hedge funds and private equity firms, which provided loans to finance some of the lawyers bringing the suits.
But the average $60,000 settlement — before deducting legal fees and other costs — has prompted frustration. Some women have said in interviews that the money being offered is inadequate for addressing continuing medical problems caused by the mesh implants, which were used to treat a condition, called pelvic prolapse, that occurs when a woman’s bladder presses against her vagina.
Elizabeth Burch, a professor at the University of Georgia School of Law who is studying how women were treated in the mesh litigation, said that one problem with mass tort cases was a lack of judicial oversight of the settlement process. She said the suits challenging the legal fees and the adequacy of the settlements could serve as a necessary check.
“You would hope there would be this robust safety net for people who fall through the cracks,” Professor Burch said. “But there is no built-in review structure to assure fairness.”
Despite the complaints, the mesh litigation has produced some benefits for the plaintiffs. The settlements are providing compensation to women who reported major problems including bleeding, pain during sex and an inability to control urination. The suits also gave voice to women whose complaints prompted the Food and Drug Administration in April to order the two companies that still manufactured mesh for pelvic prolapse to pull the products off the market.
The new suits are shining a light on some of the bad practices that can occur in mass tort cases, which sometimes operate like an assembly line, with lawyers rushing to sign up as many clients as they can and plaintiffs never getting a chance to speak to a lawyer.
One troubling aspect of the mesh cases involves the pushing of women to have the implants removed, a procedure that is sometimes necessary but can be complicated because the mesh is made of a fiber designed to bond with tissue. Last month, federal prosecutors in Brooklyn indicted a doctor and a consultant in a scheme to profit from removing mesh implants.
The lawsuit filed in federal court in Houston raises a similar issue. Three women contend in the suit that lawyers from Clark, Love & Hutson and a several other Texas firms helped arrange for them to have costly removal procedures that would increase the value of the women’s claims and lift the lawyers’ fees. The lawsuit, which could add more plaintiffs, also accuses the firm of missing filing deadlines for pursuing claims, leading to the negotiation of inadequate settlements.
Lynda Landers, one of the lawyers suing Clark Love, said that meeting filing deadlines was “Law School 101.”
Clayton A. Clark, a founding partner of the firm, defended its actions. He said that the firm had “no involvement in setting physician fees” for removal procedures and that the question of missed filing deadlines “was never an issue raised or addressed in settlement discussions.”
Another suit filed in Texas in March contends that a personal injury firm pressured a client into accepting a settlement. The suit also says the lawyers at the firm, Nations Law Firm, did not disclose that its 40 percent fee would be shared with other firms. The lawyer handling the case, Cris Feldman, said that additional women questioning their settlements had contacted him since the suit was filed. Zandra Foley, a lawyer for Nations Law Firm, said the firm denied the allegations and had obtained “fair settlement” for its clients.
Bruce H. Nagle, whose New Jersey law firm is named as the main defendant in the potential class action lawsuit filed there, called the lawsuit “pure nonsense.” He said the suit was part of a vendetta by Mr. Slater, a former partner whose new firm has won $107 million in four mesh cases it took to trial.
“Our firm followed all court rules and has nothing to be concerned about,” Mr. Nagle said.