Transvaginal Mesh Lawsuit Moves Into Trial Phase
Few people realize that the vast majority of lawsuits – between 95 and 98% – never go before a judge and jury.
In most cases, lawyers on both sides of an injury lawsuit are able to reach a settlement before going to trial. In fact, both sides will go to great lengths to achieve a settlement. Court trials are long, drawn-out, expensive, difficult and often messy. They can generate a lot of unwanted publicity for the defendant (the party being sued).
Concerning the plaintiff (the party filing the suit), getting a settlement beforehand is advantageous for a couple of reasons. In the first place, the lawyers representing the plaintiff in an injury lawsuit invariably take the case on a contingency basis. This means that legal fees are deducted from the final award (appropriately 30-33%). This way, the plaintiff does not have to pay for expensive retainers up front. It also provides a huge incentive for the plaintiff's lawyers to win the case – because if they don't, they get nothing.
When a case is settled before going to trial, the amount of the award may be less than it would be if it were decided by a jury. In addition, there may be conditions attached, e.g., the defendant may be able to disavow any responsibility for the plaintiff's injury and the plaintiff may be restrained from talking about his/her case to the press or anyone else.
Still, it's money in the bank.
When a case goes to trial, there is no guarantee that the plaintiff will get anything. If the judge does decide in favor of the plaintiff however, the award can be substantial – particularly if the defendant is a large corporation with very deep pockets and the plaintiff's attorneys can show extreme negligence.
Even so, while both sides attempt to reach a settlement, there are still numerous procedures that go on: filings, motions, discovery (basically, each side makes evidence available to the other), etc. Nonetheless, a settlement can be reached at any point before the trial begins.
Transvaginal mesh manufacturer C.R. Bard now has less than nine months to reach a settlement with its plaintiffs. The Honorable Judge Joseph R. Goodwin of West Virginia's Southern District has now set a trial date for February 2013.
The transvaginal lawsuit against Bard, one of several many medical device manufacturers being sued over the meshes, started two years ago. This will be a “bellwether trial” in which the legal issues surrounding the mesh devices are tested and evaluated. This is common in complex litigation in which there is a large number of plaintiffs are suing over the same issue. When a case is as large as this and involves hundreds of plaintiffs against an entire industry, a small group is selected to represent all the rest. The results of this trial will be used to determine, among other things, the value of claims in settlements going forward.
You can be certain that lawyers for Ethicon (Johnson & Johnson), American Medical Systems and Boston Scientific will be watching this closely.
Sources
N/A. “First Bellwether Trial Date Set For Bard Transvaginal Mesh Lawsuits.” PW Web via The Houston Chronicle, 08 May 2012.
