Mesh Litigation: the Next Asbestos Crisis
Litigation surrounding surgical mesh devices, also known as transvaginal mesh, has recently exploded resulting in thousands of lawsuits being filed against large pharmaceutical companies. Many have deemed the rise of mesh litigation as the biggest onslaught of personal injury litigation since the asbestos crisis in the 1970s through the 1990s. [i]. Complications from mesh implants can be life altering and range from the necessity for revision surgeries, continuous pain and suffering, emotional issues, incontinence, organ damage, and even death.
Mesh cases multiplied so quickly over a short period of time resulting in dramatic increases in expenditures by products liability firms. Under pressure to keep up with the demand, law firms increased supply by hiring additional staff and incurred higher than usual expenses in court costs and filing fees. Since most personal injury cases are taken on a contingency basis, plaintiffs’ firms were forced to advance a sizeable amount of money to carry the cases through litigation or to achieve the million and billion dollar settlements. Where self-funding cases was no longer a realistic option for plaintiffs’ firms, the needs for third party litigation financing became apparent. [ii].
The nature and severity of the harm suffered by easy to sympathize with plaintiffs makes mesh cases the ideal case for third party litigation funding as plaintiffs have the potential to receive million dollars awards from a jury. Even where the case is settled before trial, awards tend to average around approximately half a million per plaintiff. Litigation funding has made it possible for the injured women to engage in long-lasting litigation. Litigation funding also directly effects settlements by driving up settlements offers. To avoid trial, negative publicity, litigation costs, and the threat of having to pay a higher award, manufacturers have been offering liberal settlements. Even a U.S. District Court Judge advised manufacturers to cut their losses and settle early to avoid such. However, where plaintiffs waited and took their case to trial, they were awarded generously. For example, in 2013, a plaintiff took her case to trial and was awarded $11 million dollars by a New Jersey jury. Due to the high awards plaintiffs have received from juries, other plaintiffs have displayed a desire to hold out from accepting settlements and take their case to trial in hopes of receiving an even higher award.
The following two examples involving two of the leading mesh manufacturers illustrates just how large the mesh litigation industry is becoming. Johnson & Johnson has resolved around 2,000 to 3,000 pending mesh lawsuits by paying out over $120 million dollars in settlement offers, and still has over 42,000 cases pending. Additionally, in 2013, American Medical Systems settled mesh cases for $54.4 million followed by 20,000 more cases in 2014 for $830 million. American Medical Systems is expected to settle another 100,000 lawsuits through 2017 with an aimed average settlement amount of $48,000 per claim, plus over $1 billion dollars set in reserve to cover legal costs. [iii].
While the FDA has acknowledged that further studies are necessary, it has not banned the use of transvaginal mesh. Rather, the FDA merely reclassified mesh from a Class II to a Class III device. Thus, transvaginal mesh is continuing to be surgically implanted into women, resulting in mesh litigation to constantly grow. Without the aid of litigation funding, a lot of injured women would not be able to seek justice.
Topics: Mesh, Mesh Litigation, Litigation Finance, Personal Injury, Products Liability, Settlements
[i]. Allison Frankel and Jessica Dye, REUTERS, Special Report: Investors Profit By Funding Surgery for Desperate Women Patients, Aug. 18, 2015, http://www.reuters.com/article/usa-litigation-mesh-idUSL3N10S54U20150818.
[ii]. Kelly C. Anthony, ABF Journal, Law Firm Financing on the Stand: Controversial Financing Enables Firms to Withstand Long-Term Litigation, http://www.abfjournal.com/%3Fpost_type%3Darticles%26p%3D52484 (last visited Dec. 6, 2016).
[iii]. Bonsignore Trial Lawyers, Transvaginal Mesh Lawsuit, http://class-actions.us/medical-device/transvaginal-mesh/lawsuit/ (last visited Dec. 6, 2016).
