Endo, a subsidiary of American Medical Systems, recently announced that it will be paying out $830 million to settle around 20,000 transvaginal mesh lawsuit actions pending against it in multidistrict litigation. This is on top of over $54 million paid out last year as well as over $1 billion the company is holding in reserve to cover its legal costs.
Generally, getting an out-of-court settlement from the defendant in an injury lawsuit is considered to be a positive outcome. In fact, less than 10% of injury lawsuits ever go to trial. Settlements spare both parties the extended time, expense, and risk of going to trial. Often, it can take 3-5 years before a case is “set” for a trial setting and can drag on for several more years in an appeal process, whereas settlements are immediate and money is often issued to a client within months of signing a settlement agreement. With regard to expense, a pharmaceutical and/or medical device trial can cost anywhere from a few hundred thousand dollars to well over a half a million dollars to try a case, whereas a case that has settled without extensive pre-trial preparation may only cost in the thousands or tens-of-thousands range, at most. With regard to risk, there is no guarantee that the trial will result in a favorable outcome for the plaintiff. Even worse, the case may become dismissed on legal motions and briefing before the case ever goes to trial.
Because settlements are quicker, less expensive to achieve, and result in certainty, a settlement amount will almost always be substantially less than plaintiff trial court results. Often, an individual settlement will take into account all factors, such as (often less-publicized) trial losses in favor of Defendants, individual case factors (such as medical damages), and other case-specific facts such as applicable state laws. With any settlement, the consideration is often a matter of ad praesens ova cras pullis sunt meliora (“better eggs today than chickens tomorrow”).
AMS is only one of several companies facing a veritable army pelvic mesh litigants, women who have suffered debilitating pain and injury as a result of being treated with these devices. The AMS settlement may indicate that other manufacturers, including Ethicon, Coloplast, C.R. Bard and Boston Scientific may be considering settlements as well. Certain defendants are more recalcitrant than others. Hopefully, more defendants will come to their senses and compensate victims of their products sooner rather than later.
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