So, what is my defective hernia mesh case worth?
It is a very simple question, but you have done quite a bit of research and consulted with supposed experts – and no one can give you a straight answer. The answer is that no one knows specifically what your case is worth right now, that is why there are ongoing nationwide litigations. But before you go back to your Google search, while no one can tell you specifically what your case is worth, we can tell you what attorneys consider when they estimate the potential value of hernia mesh cases.
Here is what you need to consider:
- What were the settlement values in similar litigations?
- What are the strengths and weaknesses of your individual case?
- What can you expect to walk away with?
Helpful hint: If someone does tell you that they know exactly what your hernia mesh case is worth – at best they have no idea what they are talking about; and at worst they are an infomercial trying to sell you something. The same holds true for anyone guaranteeing a favorable outcome. This is litigation and there is always a chance that plaintiffs in litigation lose, making their cases worth nothing.
What were the settlement values in similar litigations?
Before the hernia mesh litigations, there were the pelvic mesh or transvaginal mesh (“TVM”) litigations. Many of the TVM mesh products are very similar in form and structure to synthetic hernia mesh products, and made by many of the same manufacturers. Based upon settlements across the nation (and by simply dividing the widely publicized number of cases by the total amounts of the settlements), the average settlement amount in those cases was roughly $50,000[i]. Now that does not mean that everyone with a viable TVM case received a settlement of $50,000. These are individual cases and the settlement value necessarily varies based upon the individual case. Particularly severe cases likely received significantly better than average settlements. That obviously means that cases without substantial injuries likely received very minimal settlements.
The same is true for a recent settlement involving actual hernia mesh. It is widely publicized that Bard offered $184 million to settle 2,600 Kugel Patch lawsuits. Based upon simple math, this would average $70,000 for each plaintiff[ii]. Again, the settlement amounts likely varied considerably based upon the respective attributes of the individual cases, with some claimants receiving much more than the average and many claimants receiving much less.
But wait, what about all of those gigantic verdicts everyone reads about? Those are “bellwether” cases that go to trial. Essentially, it is not feasible, or possible, to bring tens of thousands of cases to trial, so a small number of cases are chosen as test cases in order to help the parties put a value on potential global settlement parameters. For example, one of our firm’s TVM clients was chosen for a bellwether trial and we received a jury award of $20 million. That is obviously exponentially above the likely average settlement amount in these types of cases. However, you have to keep in mind that the biggest verdicts make the biggest headlines. If you research a little further, you will also see many bellwether trials where the defendant won and the plaintiff received nothing. Moreover, again, only a very few cases in any litigation are chosen for bellwether trials. For example, in the recently settled Xarelto litigations only 6 of over 25,000 cases filed in state and federal courts across the nation made it to trial.
As an aside: Comparing the value of hernia mesh cases to the value of other types of cases is not always like comparing apples to apples. There is usually little doubt that a plaintiff in a defective hernia mesh case is injured, many times severely injured. The thing that makes these types of cases particularly difficult is proving liability and causation. In a hernia mesh case, you have to prove that a relatively intricate medical implant, which has been cleared for sale by the FDA and selected for use by a licensed surgeon, failed in a certain way, directly leading to specific related medical injuries and surgical revision. Accordingly, it is not just the extent of the injuries that drives the settlement awards, it is the difficulty in proving liability and causation in these complex cases.
What are the strengths and weaknesses of your individual case?
First things first, make sure you have a viable claim – you can consult our Simple Guide to Hernia Mesh Lawsuits and Settlements. Next, think about the most important factor – how serious is your case. Similar litigation settlements are broken down into a grid or matrix, that contains different tiers of settlement amounts based on the strength of an individual case. On one end of the spectrum, there are going to be plaintiffs where there is a question as to whether the mesh actually failed and had to be revised (maybe it was just a common recurrence of the hernia or a largely unrelated infection). On the other end of the spectrum, there are going to be plaintiffs with multiple revision operations to remove failed mesh, along with extreme complications (indeed, some of the injuries are alleged to be life-threatening). That will give you a baseline of where the settlement value of your case will likely fall in relation to the similar cases we discussed above.
Note: You will see that many settlements with pharmaceutical manufacturers usually take various mitigating factors into consideration (for example, age, weight, related conditions/comorbidities, date of implant, date of injury or even the State where the injury occurred) to reduce settlement awards. Based upon the prior settlements above, such considerations are not expected to be an issue in these cases.
What can you expect to walk away with?
You have reviewed settlements in similar cases and taken an objective look at your own case. Using the same factors considered by attorneys in estimating potential values, you should be able to determine if you likely have a low value case (for example, revision of failed hernia mesh with little or no related complications), an average value case (for example, one or more revisions of failed hernia mesh with significant related complications), or a high value case (for example, several revisions with severe and extensive related complications).
Keep in mind: “Estimate” is a merely a fancy way of saying educated guess. Attorneys, and non-attorneys, can and do come to different conclusions based upon the same data known at any given time. However, the important part is that you know the basic factors that most attorneys consider in coming to their own estimated potential value of your case.
That is not the end of the process. Out of any settlement award you receive, you will need to pay attorneys’ fees and costs of the litigation, which should include not only fees and costs for your individual case, but also for the common benefit of prosecuting the entire consolidated litigation. The attorneys’ fees and types of costs should all be specifically laid out in your agreement with your attorney (make sure to read the agreement very, very carefully and ask any questions you may have before signing the agreement).
Then, there are medical liens. Essentially, if the government (Medicare, Medicaid, etc.) or your private insurer under certain circumstances (yes, your own medical insurance that you pay premiums on) paid for your medical care due to defective hernia mesh, they can put a lien on your settlement award. So, very basically, under the law as it is now the government and/or your insurance carrier may be entitled to be paid back out of your settlement award (though those lien amounts are always the subject of extensive negotiation and, in many cases, partial compromise).
Contact us if you have any questions
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