Amanda Robert Dec. 31, 2015, 9:08am


CHARLESTON, W.Va. (Legal Newsline) - Plaintiffs’ lawyers in the pelvic mesh multidistrict litigation have been competing for claims because of their tremendous monetary value, according to a memorandum filed earlier this year by one of the seven defendants in the massive MDL.

Ethicon, Inc., a subsidiary of Johnson & Johnson, pointed out in the memorandum that pelvic mesh litigation has grown aggressively because of the “inappropriate, indeed illegal, solicitation of women by unscrupulous groups and individuals, compounded by ubiquitous attorney advertising.”

In the last five years, more than 80,000 women have become involved in the pelvic mesh MDL, claiming that transvaginal mesh products that were intended to treat their stress urinary incontinence and pelvic organ prolapse were defective and caused severe medical problems.

Johnson & Johnson and Ethicon’s memorandum, which has since been withdrawn since its filing on Jan. 14, states that they were contacted by numerous women who were upset after receiving unsolicited phone calls from individuals who asked for – or already knew – their private medical information. These individuals also encouraged the women to file a lawsuit, whether or not they had an injury related to a transvaginal mesh product.

The memorandum adds that these women were led to believe that Johnson & Johnson distributed their medical information.

“What is happening here is wrong,” according to Johnson & Johnson and Ethicon. “And the fallout includes a compromised judicial system, exploitation of women and their federally (HIPPA) protected private health information, and undermined doctor-patient relationships. Further, the influx of potentially baseless claims hampers Johnson & Johnson’s and Ethicon’s ability to accurately assess the true number and value of these cases.”

Johnson & Johnson and Ethicon contend in the memorandum that the effectiveness of the solicitation is likely enhanced by attorney advertising, which they estimate at $45 million in just television advertising in 10 months of 2014.

“Solicitation of plaintiffs in pharmaceutical litigation has ‘spawned a now well understood business model that rewards attorneys who can recruit the most claimants in the most limited period of time,’” according to the memorandum.

The companies say in their memorandum that once third parties provide plaintiffs’ lawyers with access to large groups of potential clients, the lawyers can then use those clients to push for settlements with corporate defendants.

However, while Johnson & Johnson and Ethicon point out that they do not suggest that specific plaintiffs’ counsel in the pelvic mesh MDL are knowingly participating in the solicitation scheme, those counsel are obligated under federal rules to inquire into whether evidence supports their clients’ claims before filing their lawsuits.

Johnson & Johnson and Ethicon also say they do not question the right of plaintiffs’ lawyers to advertise for potential clients, but “in an environment such as this one, potentially ridden with fraud, the effect of blanketing the airwaves with calls to litigate cannot be viewed in a vacuum.”

Another concern that has arisen out of the pelvic mesh MDL is that plaintiffs’ lawyers use litigation funding to attract and advance large numbers of cases.

Nearly 15,000 pelvic mesh claims were bought and sold by trial lawyers in Texas, as alleged in a lawsuit filed against Houston law firm AkinMears on Sept. 29 in Harris County District Court. According to the lawsuit, AkinMears struck a deal with a litigation funder to finance the purchase.

Amir Shenaq, the former business development director of the firm, who brought the lawsuit, alleged that the firm initially spent significant amounts of money on thousands of television advertisements to rack up clients’ cases. However, he said in the lawsuit, the firm decided to instead buy claims that had been accumulated by other trial lawyers, with a goal of closing on $100 million worth of cases in 2015.

Michael Fishbein — an attorney with Levin, Fishbein, Sedran & Berman in Philadelphia, who served as lead plaintiffs’ counsel in the Diet Drug Products Liability MDL – explains that counsel in an MDL or class action need to exercise independent professional judgment or they destroy their ability to provide fair and adequate representation to their clients.

“The biggest thing about litigation funding is to the extent it would in any way affect your independent judgment, you have to avoid it like poison,” Fishbein said.

“Your leadership actions are going to affect a lot of people beyond your clients — they will affect other people’s clients,” he added.

“Courts put a lot of trust in the people they appoint as lead counsel, and I think they have this implicit expectation that they’re going to call the shots based upon the exercise of their independent professional judgment and not because they’re catering to a funder.”

Fishbein explains that litigation funding agreements often include specific provisions that penalize plaintiffs’ lawyers for passing up a settlement. That could force a plaintiffs lawyer to settle a case, even if their independent judgment would instead lead them to trial.

He also points out that in a class action, every class counsel’s fee should represent a percentage of the recovery so their interests are aligned with the interests of class members.

“If you’re worrying about whether or not the fee that you get will be big enough to cover whatever you promised the litigation funder and yourself, it could precipitate a misalignment with the class,” he said. “That is a bad thing.”

Victoria Shannon Sahani, an assistant professor of law at Washington and Lee University School of Law, explains that litigation funders would rather fund the plaintiffs’ attorneys in a class action because of restrictions on the class.

In these cases, she says, the judge controls everything, from the appointment of the class counsel to the approval of the attorney’s fees.

“Because judges have so much control, they won’t allow the attorney’s fees to go above a certain amount of the class winnings, “Sahani said. “There is no room for the funders to negotiate. Instead, they go to the law firm, so they can negotiate with the law firm.”

Sahani also contends that law firms often choose to group together in significant class actions and MDLs, such as those involving pelvic mesh, tobacco and asbestos.

“There is a business incentive for the law firms to join together,” she said. “These things are expensive. There are millions of plaintiffs. You’re going up against a giant corporation.

“Enter the funder.”

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