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First-ever survey of MDL plaintiffs suggests deep flaws in mass tort system

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REUTERS/Andrew Kelly

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(Reuters) - When University of Georgia law professor Elizabeth Burch, an expert in the procedural trade-offs of MDL litigation, launched a project in 2018 to survey women whose personal injury cases had been consolidated in multidistrict litigation in federal court, she wasn’t expecting good reviews for MDLs.

But what she heard when she talked to real-life plaintiffs, she said in an interview on Monday, “broke my heart.”

“I had a feeling that things were bad,” Burch said. “I had no idea they were this bad.”

Burch and co-author Margaret Williams, an adjunct professor at John Hopkins University, on Friday posted a draft paper, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, about their findings from a survey of 217 plaintiffs from MDLs involving pelvic mesh, breast implants and other products targeted toward women. (Burch has said the study focused on women’s health MDLs to make the sample manageable.) The authors billed the study as the first ever to survey MDL plaintiffs about their experiences.

The results, wrote Burch and Williams, “reveal a system under stress that all too often fails to justly serve those who need it most.” Nearly two-third of the survey respondents were somewhat or extremely dissatisfied with their lawyers. More than 75% said they did not know what was happening in their case while it was being litigated. Sixty percent said they did not entirely trust their lawyers to act in their best interest. A similar percentage said their lawyers’ fees were unreasonable.

Plaintiffs were disturbed by how long their cases took to reach a resolution – more than four years, on average – and more than 80% of those whose cases settled said they were somewhat or extremely dissatisfied with the fairness of the settlement process.

The women offered a number of reasons for suing. Compensation and recoupment of medical expenses topped the list at 55%, but plaintiffs also wanted to punish defendants they blamed for their injuries and to protect others from experiencing similar harm. In what Burch described as “the most depressing” finding in the study, only 1.8% of the survey respondents reported that the litigation accomplished what they had hoped.

A few caveats. Survey respondents were self-selected. The survey was posted online, but was not randomly distributed to plaintiffs by regular or electronic email. More than 85% of the respondents were plaintiffs who sued over pelvic mesh — a gargantuan litigation that has generated passionate activism. Burch argued that the pelvic mesh MDLs were procedurally similar to other multidistrict litigation and featured many plaintiffs’ lawyers who are so-called repeat players in MDL leadership. “Mesh is not unique in the way the MDLs were handled,” she said.

But in our interview, she acknowledged that it’s not clear whether her survey sample is truly representative of MDL plaintiffs. The paper itself conceded that plaintiffs with extreme views may have been more motivated to participate. Burch and Williams deflected that potential criticism by pointing to the age and geographic diversity of the sample, as well as the range of responses to the 100-question survey.

Even if the 217 respondents did represent an extreme, mesh-centered sample, Burch told me, judges and lawyers can still learn from them.

The paper maintains respondents’ anonymity, so it does not specify which plaintiffs’ firms represented the women who answered the survey. But Burch and Williams said survey respondents were represented by 295 different lawyers from 145 law firms. Of those firms, the paper said, 54% had been named to a plaintiffs’ steering committee. Therefore, the paper said, the problems recounted by respondents could not be blamed on a few inexperienced plaintiffs' firms.

These firms were not “a few bad apples,” the paper said. “They were insiders.”

I emailed queries about Burch’s paper to several plaintiffs’ lawyers from the leadership of the pelvic mesh litigation, including Bryan Aylstock of Aylstock Witkin Kreis & Overholtz; Henry Garrard of Blasingame, Burch, Garrard & Ashley; Clayton Clark of Clark, Love & Hutson; and Thomas Cartmell of Wagstaff & Cartmell. None got back to me.

I could have filled this entire column with distressing quotations from the survey respondents who offered narrative comments to Burch in addition to their straightforward survey answers. Broadly speaking, women told Burch they felt like they had no voice or control in their cases, during the litigation or even when cases settled. “I received no justice,” one respondent said. “My rights were taken from me and thrown back in my face by the very people who are supposed to uphold them.”

The problem, wrote Burch and Williams, is that the “statutory ideal” of the MDL process, in which individual clients’ cases are handled more justly and efficiently through consolidated pre-trial proceedings, has become “just a convenient fiction.” Volume is the play for many plaintiffs' firms involved in MDLs, the paper said. And though MDLs have allowed access to the courts for plaintiffs whose individual claims might not otherwise be viable, Burch and Williams wrote, “law firms’ Costco-type warehousing seems to leave clients feeling deeply dissatisfied with nearly all aspects of their attorney-client relationship.”

So what’s to be done? That’s a huge, systemic question, but Burch and Williams offered a few ideas for easy, concrete improvements, such as using technology to provide plaintiffs with better notice of and access to MDL proceedings. Burch told me she was shocked by how little plaintiffs knew about their cases. (Many didn’t even know who their lawyers were.) Simply providing easily navigable websites for big MDLs – and allowing plaintiffs telephone or video access to hearings and even defendants’ depositions – would help, the paper said.

So would closer oversight, by judges or through public disclosure, of plaintiffs’ contracts with counsel to guard against overcharges. And bar associations, the paper said, should address the ethics of “volume lawyering.”

“Any attention that we pay to this,” Burch told me, “has to be a marginal improvement over the status quo.”

Read more:

Q&A: Georgia University's Elizabeth Burch on new women's health MDL research project

A handful of plaintiffs' lawyers dominates MDL litigation. Is that a problem?

Medical device defendant probes origin of mesh claims

Reporting By Alison Frankel

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin. Reach her at alison.frankel@thomsonreuters.com

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