1 MESH CLIENT NEWSLETTER Isssue 2 :: March, 2012 :: Dear Clients, In our last Mueller Law Newsletter, we included information on the difference between a class action and a mass tort. In an effort to keep you better informed about the mesh litigation process, we are following up with an informational article on Multidistrict Litigation (MDL). Additionally, we have included articles on how to effectively manage your social media pages and what to do should health insurers contact you to ask about your experience with surgical mesh. As always, do not hesitate to contact us should you have any questions or concerns regarding your case. Sincerely, Mark Mueller Table of Contents Social Media Awareness Insurance Inquiries What is Multidistrict Litigation? Social Media Awareness As we progress into litigation with the mesh cases, it is important to keep in mind the value of protecting your privacy, especially in the age of social media. When involved in a lawsuit against major corporations, we encourage you to implement the rule that your privacy is not necessarily private. With the numerous outlets like Facebook, forums, etc., we at Mueller Law would like to emphasize that you keep Internet interaction at a minimum, even consider deactivating accounts. Suggestions? What would you like to see in our next newsletter? If you have a suggestion for an article, tell us about it: Contact Us Mueller Law 404 W. 7th St. Austin, TX A clear way to view this is to think like your opponent, and assume that if you post something, the other side will see it. There have been many legal rulings to further the importance of this matter. We understand that what you re experiencing is very difficult, even
2 life-altering, but from a legal viewpoint, our intention is to guide you through this with the best outcome. Keep Your Information Private 1. Do not discuss the mesh lawsuit online, as everything is traceable and transparent once posted on the Internet. If you have questions, please consult Mueller Law. Again, think as the other side would. 2. Keep an offline written account of your experiences. Be detailed. 3. Be conscious of all personal photos as well as professional that are posted in public forums and media outlets. Insurance Inquiries Some of our clients have reported that they have been asked by their health insurers to fill out questionnaires relating to having been implanted with surgical mesh products. For example: One of our clients received a letter from their health insurer that states that the insurer has asked a large legal services provider to assist the insurer in what it called a cost savings program. The letter states that the insurer s records show that the client may have been implanted with a surgical mesh support system to treat pelvic organ prolapse or urinary incontinence. The letter then states that the manufacturer of this product may be financially responsible for claims related to any injury or illness that the client may have suffered. The letter goes on to say that if the surgical mesh support system s manufacturer is responsible for heath care claims, then the health insurance company may be able to recover the costs of the medical care from the manufacturer. The letter
3 then tells the client that by the health insurer being able to recover such costs, it helps to control or reduce the costs paid by insureds and employers of insureds. The letter then tells the client to fill out a questionnaire that asks questions like: Have you pursued or are you pursuing a personal injury claim related to your surgical mesh support system? While we are not necessarily disputing an insurer s right to attempt to recover some of their expenditures in what is known as a subrogation claim. We ask our clients to notify our office if they have received one of these questionnaires, and to forward a copy to us. We ask that if you receive one of these questionnaires that you not return it to the insurer until we have had an opportunity to review the questionnaire and advise you on what action to take. Contact us for more information. What is Multidistrict Litigation? Multidistrict Litigation or MDL is a procedure used in the federal court system to consolidate and transfer to a single judge all pending civil cases of a similar type, against the same defendant, from around the country. The decision as to whether the cases should be consolidated is made by a panel of judges, which meet periodically to review requests that cases be transferred into an MDL for pretrial matters. The panel is composed of seven federal judges who are chosen by the Chief Justice of the Supreme Court of the United States. The Panel has the responsibility for determining which cases qualify for MDL treatment; as well as to which district court the cases will be transferred and consolidated. Pursuant to federal law (Chapter 28 of the United States Code, Section 1407), it is up to the Panel to make sure the transfers will result in the convenience of the parties and witnesses, and will promote the just and efficient conduct of the cases. As we pointed out in our last Newsletter, the mesh litigation is not a class action, but rather a collection of individual cases.
4 What does it mean for your case? An MDL coordinates all of the individual case filings of a specific kind. Instead of having dozens or even hundreds of lawyers taking the same depositions of a particular defendant corporation, in an MDL, specially designated attorneys will be responsible for not just taking depositions, but obtaining any documents or other information needed, and making all relevant information in the case available to parties with like cases. The defendant or defendants will also act to consolidate their efforts during the discovery phase of the litigation. The MDL process makes the advancement of the steps of a mass litigation simpler and more efficient for all parties by avoiding duplication in the discovery process. Obviously, duplication of efforts is likely to arise when there is a large number of the same type of cases. This MDL process will likely create timetables that every party filing a lawsuit must follow. There will be court orders that will apply to every case that might not apply if the cases were litigated individually without the MDL coordination. Recent developments Prior to any group of cases being designated for MDL and transferred to one federal court, the Judicial Panel on Multidistrict Litigation conducts a hearing. The Panel's order of transfer will be based upon the outcome of the hearing at which evidence may be offered by any party to an action in any federal court that would be affected by the transfer. Such a hearing as described above was held this past January 26 at the Federal District Court in Miami, the principal of our firm, Mark Mueller, attended the hearing and presented argument before the panel. On February 7, 2011, the Judicial Panel on Multidistrict Litigation ordered that three MDL s be established: one each for cases involving products manufactured by American Medical Systems, Inc., Boston Scientific Corporation, and Ethicon, Inc.. At present, the three MDL s consist of over 150 cases that have been filed around the country; this number is expected to increase. All the cases against each of the three manufacturers will be transferred to the U.S. District Court for the Southern District of West Virginia; the cases will be supervised by Chief Judge Joseph Goodwin. Chief Judge Goodwin has considerable experience with the issues surrounding surgical mesh litigation; he is also the presiding judge over the ongoing Bard Avaulta mesh products MDL. What does this mean for you as a litigant in an MDL setting? Now that the MDL court has been established for the mesh products mentioned above, all the federal courts in the country that have these cases will transfer their cases to the MDL court in West Virginia. As a result, all of the cases are now before one court who then manages the pre-trial proceedings for all those cases as though there was only one case. For example, there may be a
5 thousand individual cases in an MDL, but one ruling will decide an issue for all. These rulings are of a general nature and don't usually delve into the specifics of an individual case. The idea is that it is much more efficient to have one ruling on a general issue than having one thousand rulings by many judges on the same issue. Managing the MDL The MDL proceeding is managed by the federal judge with the help of the claimants and defense attorneys involved. Typically, a plaintiffs' steering committee is created, its members are appointed by the MDL judge, and it is responsible for representing all the claimants in the MDL. This process greatly reduces the number of attorneys who are actually involved in the pre-trial proceedings. Not every MDL will be conducted the same way; different judges have different techniques and philosophies about how to do the job. Some judges will primarily manage the discovery process, rule on discovery disputes, and decide on what evidence the medical device or drug could cause the said injuries that are reliable enough to be presented to a jury. Other judges oversee the discovery process but actually have jury trials on a few cases that were filed in their own court. The idea here is to use the rulings and verdicts in these trials to resolve issues in all cases, and also to help the attorneys for both parties to reach a global settlement in the most expeditious way. These trials involve what have been termed as bellwether cases, and from our point of view, need to exemplify the highest potential for harm that the product can arguably cause for the typical plaintiff. At some point, all the cases must be resolved by either settlement or trial. Some MDLs are settled in a group fashion; others, individually. On one hand, the manufactures may negotiate with individual claimants. On the other, manufacturers may agree to pay a set sum of money, and all claimants apply for compensation based on their individual case. With the second approach, the MDL judge usually monitors the process, but the settlement awards are determined by neutral masters or arbiters who are highly experienced in these types of cases. Each claimant may accept or reject the award; if they accept, they give up their claim and release the manufacturer of any further liability. We hope this provides an understanding of the development of the mesh litigation. As we move forward in this complicated technical process, we will always remember that our purpose is driven by clients interests.