Some 20,000 women left in pain by injuries linked to pelvic mesh implants thought they were getting relief by signing up with a major law firm in Houston to get financial compensation from mesh corporations.
The law firm has collected several hundred million dollars from its mesh lawsuits. But the women? Not so much, according to a malpractice lawsuit in Texas from four of them accusing the firm of failing to file critical motions for their cases on time.
The women say their rights to sue were taken away by Clark, Love & Hutson when the firm “blew” their cases’ statutes of limitations.
However, at a hearing Friday in a rural Texas county more than an hour’s drive west of Houston, a local judge is going to decide whether to take action against the small Texas law firm that represents the four women plaintiffs.
Meanwhile, their lawsuit complaint against Clark Love has been sealed at Clark Love’s request. Clark Love is one of the largest law firms in Texas and among the most powerful tort firms in the nation.
Soon after the four women filed what is essentially a claim of malpractice against Clark Love over the statutes of limitation issue, Clark Love filed its own suit against Beggs Lander in Wharton County. Clark Love claims that Beggs Landers had revealed Clark's proprietary information by publishing the actual amounts of the women’s settlement awards in the malpractice complaint. Now Clark Love wants Beggs Landers to turn over information on their own client list.
At the hearing, Judge Ben Hardin, elected in Wharton County, population 41,000, may demand that Jim Beggs and Lynda Landers testify about the client list and other information that Beggs and Landers say is attorney-client privileged. If they refuse, they could be held in contempt—which could affect their ability to continue the malpractice suit against Clark Love.
“This is all about David versus Goliath,” said Lynda Landers in an interview. “It’s about trying to shut down these women’s voices because Clark Love is a big law firm” and the statutes issue is “embarrassing.”
The legal fracas is just the latest installment in the saga of vaginal mesh, which has left thousands of women with serious damage to their bladders and other organs. It’s taken a toll on families: Many women who had mesh implants can no longer have sex with their husbands or partners because the plastic mesh has eroded and is sticking through tissue in their pelvic region. Meanwhile, injuries and chronic infections in their urinary organs have made thousands of women depend on Depends adult diapers.
Clark has denied any wrongdoing. In a statement, the firm said, "This notion of so-called missed deadlines is based on misinformation.” The statement adds that the firm had additional agreements with the mesh maker corporations that would allow for more time.
Clark was one of the lead firms in the national federal suit against the makers of pelvic mesh, and was heavily involved in negotiations with the four largest companies for aggregate national settlements. Even though those four Clark clients were awarded damages in the aggregate settlements, the amount they actually received was much lower, in some cases less than half.
For example, Tammy Alvarado’s settlement award was $137,943; she received $48,448 after the 40-percent attorneys’ fees and surgery charges. The four women in this suit claim that Clark Love breached its fiduciary duty by allowing their statutes of limitations to expire so they cannot sue the mesh companies directly, and they want the 40 percent and other expenses Clark Love took from their settlements returned to them.
In Clark’s state court suit in Wharton County against Beggs Landers, Clark has indicated it believes Landers and Beggs acquired Clark’s list of mesh clients, which could number 26,000.
Ms. Landers and Mr. Beggs said they don’t have any list from Clark Love and aren’t even sure what the list is.
In late July, Landers and Beggs filed a new complaint in federal court against Clark Love for fiduciary breach on behalf of another woman, Pamela Johnson. She signed up as a pelvic mesh client in 2011. Her claim was settled in 2015 as part of the aggregate agreement between the MDL plaintiffs and American Medical Systems, which made Johnson’s mesh implant. But by that time, the statute on her individual claim had expired, meaning her only recompense would come from the settlement. Johnson’s suit in federal court has not been sealed.
One of the mysteries here is what is motivating the Clark firm to attack the lawyers for the women plaintiffs, and who has custody of the funds paid by major manufacturers in the aggregate settlements.
Clark Love, which was on the executive committee for the national MDL mesh litigation and also was co-lead counsel for the part of the litigation against Boston Scientific, is due to receive some $45 million in leadership fees. It also gets roughly 40 percent of the settlement awards for the 20,000-plus clients it has reportedly signed up in the pelvic mesh cases. Clark Love claims it has obtained settlements and verdicts in the mesh litigation for more than $1.5 billion, according to the SouthEast Texas Record.
The mesh litigation has already cost makers about $8 billion in awards and legal fees. Two of America’s largest healthcare corporations—Johnson & Johnson and Boston Scientific—were among the companies sued.
The mesh disaster has become the latest example of mistakes and lax laws in government’s protection of U.S. consumers and its regulation and oversight of the $400 billion medical device market. Medical devices are linked to some 80,000 deaths and 2 million injuries since 2008, according to a journalist consortium’s 2016 report.
The vaginal mesh craze started in the late 1990’s. By 2014, it is believed more than two million women had implants to treat stress urinary incontinence or pelvic organ prolapse—both conditions associated with age in women, or childbirth, or both.
Mesh makers have insisted for years that the rate of serious complications from mesh implants was very low—2 to 5 percent. But in 2011, the Food and Drug Administration warned that serious complications from prolapse mesh were “NOT RARE,” putting those words in capital letters. Information from some recent studies in the U.S. and surveys in the United Kingdom and Australia suggest that the risk of damage from mesh is 10 percent or higher.
A larger legal issue at play is the way in which many of the major plaintiffs firms that handle tort claims like product liability dealt with the mesh lawsuits. Law professor Elizabeth Burch at the University of Georgia, who is writing a book about the mesh litigation, said earlier this year that the question is whether the major players in the MDL litigation acted in a way that helped their clients, or in one that just maintained their places in the hierarchy of tort litigation. She says “the usual suspects” end up on the MDL merry-go-rounds around the country, and no one breaks rank.
But this time, a few top attorneys in the mesh litigation did go their own way, after initially working with the multi-district litigation, or MDL, in this case covering about 100,000 women plaintiffs suing defendants including our major healthcare corporations that sell pelvic mesh implants.
Those attorneys who split from the MDL instead pursued court cases for individual women who were seriously and permanently injured after having vaginal mesh implants for incontinence or pelvic organ prolapse, and their clients came often out better financially than those in the aggregate settlements. Trial verdicts in recent mesh cases have produced an average of roughly $20 million per client; according to court documents, the average award in the mass settlements is less than $60,000—and many women are actually receiving less than half that amount after fees and deductions.