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Dennis
Hi, everyone, I’m Attorney Dennis VanDerGinst, the president and CEO of VanDerGinst Law. I’d like to welcome you all to our VanDerGinst Law Virtual Town Hall. We’ll be discussing legal and consumer related topics with some of the best experts in the country. We have asked for questions from online followers in advance, and this content may also be used in one of our podcasts.
I want to remind everyone to be sure to follow us on all of our social media outlets. Subscribe to our free eNewsletter, VMail, which you can do from our website vlaw.com, and check out our podcasts “Life, Laughs, and Law” and “Legal Squeak”.
Today, I’m happy and proud to announce that our guests are Barbara Capasso and John Ray. They’re the founders of Mass Tort Nexis, which is an incredible educational resource on the practice of mass torts, specifically pharmaceutical and medical device litigation.
Essentially, they teach, consult and provide in depth, knowledge and research to plaintiffs law firms across the country. And I’m happy to say that at VanDerGinst Law we use their services and consult with them every week. We’re glad to have them here today to provide their expert insights into the hernia mesh litigation. We also have Kitka Galvin, who is the lead paralegal and mass tort coordinator at VanDerGinst Law.
So I’d like to begin by throwing out a couple of questions for John or Barbara to answer. First, we’d like to discuss, what is hernia mesh? What’s it designed to address?
What is Hernia Mesh?
John
OK, hernia mesh is one of those products, a medical device, that when it was originally created, there was probably a need for it. Basically it looks like a window screen, but it’s made out of various types of plastics and other petroleum products in general.
And there was a need in the market for it for exceptional use. In other words, when someone… hernias have been repaired going back to the Egyptian times.
Through suturing, through suturing a… when the muscles have divided and an internal organ or structure is protruding to the muscle, that’s what a hernia is.
The traditional method of repairing that was to open up the hernia site and then suture muscle back in to other viable tissue. That was the traditional method. It still works and is still used today.
When hernia mesh came on the market – when I say there was a need of it, the exceptional use need – those cases, those surgical cases where there was no viable tissue.
Let’s say everything around the hernia site, the muscle tissue, was either necrotic dead or otherwise disturbed. So the traditional methods wouldn’t work. That would be a good use for hernia mesh.
Overuse of Mesh and Where the Problems Arise
John
But makers of medical devices do not want to create a device for exceptional use. They want to create a device and have it be standard of care. In other words, they want a doctor to use that device every time they see a hernia.
Had the device been limited to exceptional use, one out of two thousand, one out of three thousand surgical cases, very few people would have been injured. And arguably since they had, since the normal method wouldn’t have worked, it would have been justified using it to give at least give them a chance.
But the manufacturers of the product marketed it as standard of care. And true, it is easier for surgeries and quicker for surgeons to use hernia mesh than to do the traditional methods.
But these problems over the years, going back 20 years, have been problematic and the manufacturers keep trying to solve the problems, and all they seem to be accomplishing is to make the products even more dangerous. Endanger even more people. That’s a quick history of hernia mesh.
And just on a side note, transvaginal mesh, which there was massive litigation over, came to be because certain surgeons were taking hernia mesh products and cutting them into designs for those exceptional use cases in vaginal vault surgeries where traditional tacking methods wouldn’t work and using them off label.
The manufacturers of hernia mesh products discovered that, and then they went out and got… they cut the products themselves and got new approvals from the FDA, and again made it standard of care for vaginal vault prolapse surgeries and again harmed hundreds of thousands of women as a result.
Changing the Standard of Care for Hernia Treatment
Barbara
Okay, let me see if I can simplify some of that a little better. Basically, for your audience, standard of care means the way a surgery is performed in most facilities.
So let me explain what that means. It’s really important. If any of your audience, or any of your clients, Dennis, go into the hospital and have a hernia, the only way, 99 percent of the time, the only way that they repair a hernia today is with mesh. Whereas as John explained before, they used to use a tacking procedure.
Why did they do it? It’s very simple.
They make more money because they’re using a medical device. And secondly, surgeons don’t need to be as skilled, and they can perform far more surgeries per day.
So it’s more efficient for the medical community and for doctors to perform surgery this way.
In fact, most likely, if you have a hernia and go in to see a doctor or a surgeon, unless you ask for a tacking procedure and demand it, they will use hernia mesh on you.
John
Or ask them to avoid using hernia mesh if at all possible. Those numbers, 99 percent of surgical cases is probably higher. You use mesh versus one percent using tacking should be reverse.
The standard of care should be tacking, that that’s the first thing the surgeon thinks of and the exceptional use, the “okay, tacking is not going to work here, we’re going to use hernia mesh” should be the less than one percent. But it’s opposite.
How is Hernia Mesh Supposed to Work?
Barbara
Correct. The next important issue here is “how is hernia mesh supposed to work?”
Well, I guess that depends. Hernia mesh is supposed to… the theory is, it’s supposed to go in, as John explained, and patch the area. But unfortunately, for many reasons that I’ll let John go into, those patches fail to stay in place and do far worse things than not stay in place.
John
Think about it like this. We’ll go back to the window screen or screen door example. A screen and a screen door or a window screen is attached to a frame and it’s held in place by that frame, stretched.
Now, think about cutting a piece of that screen out of its frame. Now it’s loose. And attaching it to something that is mobile, i.e., the human body, muscle tissue and other tissue in the body that’s going to be moving around. It’s no longer in a frame that holds it in place.
One of the things that occurs is it becomes loose as the body moves. And the other thing that occurs, any time there is a foreign object in the body, if you’ve ever had a splinter in your finger that you did not remove, you will see that the skin grows over that splinter.
When a foreign object is in the human body, the human body, essentially attacks it, tries to get rid of it. And if it can’t get rid of it, it tries to encapsulate it. And the human body sees this mesh as a foreign invader. And this is one of the problems that the mesh manufacturers have tried to overcome unsuccessfully.
So you end up with either the product coming loose and it ends up, instead of holding a hernia in place, just a ball of mesh, called a meshoma, with tissue attaching to it and it starts pulling other tissue causing organ damage, because as it pulls into that ball, as it’s being pulled by muscles and other organs, it’s damaging tissue as well as creating this foreign object that resembled a tumor inside the human body.
So that’s why when you take a mesh out of a stretched screen with something to hold it, that doesn’t move like a metal frame, and put it in the human body, it’s quite obvious the problems that can occur. And they do.
Side Effects of Hernia Mesh
Barbara
Yeah, and quite honestly, the first side effect that almost every patient complains of, the very first thing, if they’ve had an original mesh surgery or their first surgery, they end up in pain. Now, what type of pain depends on the individual. It can be a little bit of pain, it can be excruciating pain and anything in between.
So at that point, generally then, you go back to your doctor and say, “look, I had the surgery some time ago and I’m in a lot of pain and I want relief from this pain”. So the first side effect is pain.
And what generally happens after that? It depends on your situation and your doctor and you know what transpires after you have your first hernia surgery.
But generally, if it’s bad enough, and they take imaging and see that there’s an issue, you will go back in and have another surgery after your original surgery.
We call that a revision surgery and some folks have multiple revision surgeries.
John
The problem that often occurs when the body has encapsulated and disformed the mesh, is that it can’t be completely surgically removed.
Let’s say it is between your stomach wall and your intestines and it’s attached to your intestines or pieces of it. The only way to remove it, if it does have to be removed, if it can’t be safely left in, even if it’s causing your pain, is to remove part of your colon or your intestine.
Your small intestine, your large intestines, or your colon. So you can end up losing a very important anatomical structure, like a piece of your small intestines, because the mesh has grown into it and can’t be removed surgically piece by piece.
Where We Are in the Litigation
Dennis
Now, you guys, I don’t know if you even realized I was gone, but I had a technical difficulty there. This, by the way, folks, is why I love working with these guys. They are consummate professionals. They just kept right on rolling with with me being absent. So that’s wonderful.
Have you been able to address… obviously, I’m not sure what I’ve missed out on, but have you been able to talk about the companies, the defendants that are involved in the litigation and where we’re at as far as the litigation?
Barbara
That’s exactly where we are, Dennis. You’re awesome. You picked right up.
So let me explain to everyone out there where we are. Hernia mesh is actually manufactured by many different manufacturers.
That’s the way the pharmaceutical industry works. Once something is on the market and selling well, other companies come and duplicate it because they want part of the market share. They want part of the money. There’s no other way to say it.
The number one manufacturer of hernia mesh is Bard. Now, they make up seventy or seventy five percent of the market. However, if you have a different type of mesh, it too will likely be part of this litigation.
And please contact VanDerGinst Law. They have an entire list of all the products that are part of this litigation. So it’s not just Bard, but it is very likely that you may have a Bard product.
John
But I would say regardless of whether or not, regardless of the product, if the product itself has malfunctioned, in other words, it’s not that you’ve got a post surgical infection a few days after your surgery, but you went back in, your doctor has taken images or whatever, and the mesh isn’t where it’s supposed to be and it doesn’t look like it’s supposed to look, then call the law firm and let them review your case.
Because simply because a product may not have been recalled does not mean that because that product malfunctioned, that a viable product liability litigation against the maker for failing to make a product that the bad thing didn’t happen, that happened to you.
Barbara
That’s right. And also, please understand that most of you will not know what type of mesh you had because you were having surgery.
So unless you looked at your records or someone in your family did, you just got something repaired that that was broken in your body.
So please don’t let that stop you from calling VanDerGinst Law because if you have had a revision surgery, which we said earlier is a second surgery after your first surgery because you were in pain or for other reasons, then you may have a viable claim.
So don’t feel, “oh gosh, I don’t know what type I have. I should know.” That isn’t the case at all. We’ll figure that out with your medical records.
But if you have had hernia mesh surgery and you’ve had a second or third, or subsequent surgeries to your first, you may definitely have a claim here.
John
Or if you’re scheduled to have a surgery, second surgery, a repair surgery.
Multi-District Litigation (MDL) Vs. Class Action
Dennis
Right, right. Have you had an opportunity to talk about multi-district litigation and the way that these claims are brought and where we’re at in litigation right now?
When I say we, I mean the litigation itself.
John
Multi-district litigation. Most everyone’s heard of a class action lawsuit. You’ve probably received a notice before for a class action lawsuit. Could be that Equifax or someone like that let your data get out. Or your insurance company was overcharging you.
The difference in a multi-district litigation and a class action, is essentially, you may get that notice and you may receive funds, a small amount of money at some point time.
The difference in a class action and a multi-district litigation, is in a multi-district litigation, the cases that are filed all have certain facts that are common to all the cases. In other words, like “Hey this product we recalled, this is why it was defective”.
One federal judge is going to hear all that. But the difference is your case remains a separate and individual case. So you’re not going to get a coupon in the mail like you might from a class action.
Your case is actually going to be… ultimately if it doesn’t settle, tried on the merits. Generally, they do settle. So we’re talking about significant compensation, not a coupon from the defendant for one of the products.
How Much Will My Hernia Mesh Settlement Be?
Barbara
What we like to say is, since John compared it to a class action, we’ve all participated in those and got a very generally a small amount of money, maybe something else.
But what makes these different is these claims against the makers of hernia mesh have the potential for very meaningful compensation.
And it just depends on your injuries. So the best way to describe it is each individual who files a claim with VanDerGinst Law may be getting a different amount of money.
It just depends on your individual injuries. And oftentimes we don’t know what the claims are going to pay until we get very close to settlement.
When Will the Settlement Take Place?
Barbara
Which brings me to the fact that hernia mesh, this litigation, has been going on for upwards of four years now.
John
The current one.
Barbara
The current litigation. And so we are getting close to our settlement.
Now, what does that mean, exactly?
Well, we don’t know for sure. It could be another year. It could be another two years until we get to a settlement. However, it’s very important that you call now, because it takes us time.
It takes the VanDerGinst Law firm time. It takes everyone time to get the medical records to prove up your claim. So the sooner you call, the better so we can get working on your claim.
John
Something that’s important for plaintiffs to understand, is that the defendants in these cases, they know what they did, they know what they didn’t do, they know what they did wrong.
But in order for Dennis, and other firms that work on these cases, to get to force the defendant to settle. It’s not like the defendant comes to court and says, “oh, yeah, these are the things we did wrong”.
The plaintiffs’ lawyers’ have to pull it out of them. And through the discovery process, the court forces the defendant to give the plaintiff’s lawyer the information, have to ultimately prove the case because the defendant is going to say “we did nothing wrong from day one”.
But in the end, after several years of litigation and discovery, we’re able to have a lawyer, or Dennis will be able to, prove, “yes, you did do something wrong. Yes, this was your fault. And yes, you are going to pay these people.”
Dennis
Right. And I think it’s important to note here, it’s something that John had said before, that I’m sure that anybody who is watching or listening is going to want to know, which is whether or not they’re going to have to be expected to go to trial.
And as John pointed out, it’s highly unlikely that anybody that we’re representing is going to have to go to trial.
Typically in a case like this, there are only a handful of cases that go to trial. Which kind of sets the stage for the settlement that follows.
It kind of lays out a template that that can be used going forward to see what the universe is like as far as the possibility of settlement.
What Type of Injury Qualifies for Compensation?
Dennis
So maybe what we should do to kind of wrap this up is talk about exactly what kind of injury qualifies someone for compensation.
And I know, as Barbara pointed out, we don’t know what the potential resolution may be, but maybe at least talk about a reasonable range of expectations.
Barbara
Certainly. Well, I’m not going to go into all of the medical injuries, but I will say that hernia mesh has one of the largest combinations of injuries that I’ve ever seen.
So you can have something, I’ll just give a basic example. Something as small as John mentioned earlier, the mesh not tacking properly where they just have to go back in after the surgery and tack it a little better.
Sometimes, as John pointed out earlier as well, the mesh will ball up and that causes obviously severe pain. And that’s that’s a midsize injury, if you will.
And in the larger injuries John mentioned earlier as well, something where they may have to go in and do a bowel dissection where you end up, sometimes in the worst cases, with a colostomy bag.
So as you can see, the value of your claim would vary based on your particular injuries.
What If My Mesh Injury is Inoperable?
John
Let me interject here. I mean, the touchstone, what what we look for in a case is that the person has either had revision surgery to fix the mesh that was put in, not a new hernia, but to fix the problem with the fix for the prior hernia.
But there’s one case, I was going to make sure I say this, because the single most valuable case where there is the most damage is the case where the doctor will not do surgery.
The problem is so bad that it’s called an inoperable. That the doctors looked at it and said, “well, I would like to do surgery, but you’re going to be… yes, you’re going to be in pain the rest of your life. You’re going to have problems and this could potentially hurt you, but if I had surgery, I might kill you”.
Or your problem may be far worse. So inoperable. Just because you haven’t had surgery, if your doctors told you “I can’t do the surgery because it’s too dangerous because of the condition of the mesh”. But those are rare. But I don’t want everyone to think, well, “my doctor said I can’t have revision surgery, which means I don’t have a case”.
Barbara
Now, don’t call the VanDerGinst firm and tell them that you can’t be operated on again because we will need proof of this.
So just to be clear, that is a very rare thing to happen, but it does happen where it’s just too risky because of someone’s age, medical condition, where the mesh is migrated or moved. So it happens on occasion.
What Can I Expect When I Call In?
Dennis
Right, right. So I’m going to ask Kitka to interject now.
Would you let our listeners and the viewers know what it is that they can do if they have questions or if they feel that they have a case that they’d like us to help them out with, what is it that they should do?
And can you kind of outline for them what to expect once they contact us, how we get these cases and how we open their files?
Kitka
Sure. Good question.
So the first thing I would say, if you’re sitting at home and you think “that sounds like me”, please go to our website and there’s a there’ll be a free screening. A few questions to answer.
And once we get that, one of our intake specialist will reach out to you. There’ll be another series of questions, of course, going a little bit more in depth.
The way we decide what determines if you have a case, is we would need to order your medical records, your operative records, and kind of put the facts together. Put the proof together.
And once we get that, those medical records and that documentation that we need to prove it, we then go forward, as John described, the MDL, the multi-district litigation.
That’s how these things are filed. So you’ll get paperwork, you’ll be asked questions, you’ll get paperwork.
One piece of paper is a contract saying you’d like us to handle this for you and then also authorizations for us to get that documentation that we need. After that, you just have to have patience.
It’s, as Barb and John said, this has been going on for four years and we’re still kind of in the homestretch, but we’re not there yet. And we have other mass torts that are just beginning. It’s a long process. It’s a lot of waiting.
You’ll hear from us about once a month. We might not have anything to tell you other than we’re still here and we’re still working on it.
But we do keep in contact with you about once a month.
Wrapping It Up
Dennis
Thank you, Kitka. And Kitka mentioned the website. Again, that’s vlaw.com.
If you need to or if you’d prefer to actually give us a call because you have questions, you can reach us at 800-960-vlaw(8529).
Or you can check out our Facebook page or other social media platforms. But usually we’re going to put you through that vetting process that Kitka had mentioned to determine whether we think that there’s a viable claim.
Because obviously we’re not here to waste your time. John and Barbara have done an outstanding job of outlining what it is that we’re looking at, what we’re looking for, what the problems are, what the potential defects are that have arisen as a result, and what the status of the litigation is.
So I want to give John and Barbara a chance. If you have anything more that you’d like to add, feel free to jump in.
John
I want to say this. Because I’ve been doing this for over 20 years, working as a researcher related to defective drugs and medical devices.
And I know some people just don’t like the idea of filing a lawsuit. I call them “litigation averse” and they just don’t like the idea of filing a lawsuit.
But something I always say to those people is this just isn’t about you. What you’re doing when you call a law firm and add your name to the list or add your case, your example of how you were harmed to the list, you’re helping other people avoid harm in the future.
So even if you don’t want to do it for yourself, do it for everyone else, that you’ll be helping to prevent them from being harmed in the future.
Dennis
Great point, John. I definitely appreciate that. Barb, do you have anything to add?
Barbara
Just one final thing. We had talked about Bard being the main manufacturer of mesh, and you’d asked me, or asked all of us about trials.
All of the trials have been chosen for Bard, but due to COVID we haven’t been able to move forward. But the chance of one of your client’s claims to be chosen for trial is about one percent at this point.
So basically, we would just be collecting the medical records and filing the claim into the MDL. So I just wanted to make that point because I think it’s an important one.
Dennis
It is an important one. And I guess the final point that I will make, but I don’t know that we have touched on at all, but it is certainly something that people might be questioning, is the fact that we work these files on a contingent fee basis.
So really, as John mentioned, whether it’s for yourself or those who follow you, it’s not going to cost you anything unless we are successful in getting you compensation. So we front the costs.
There’s no fee to discuss the case with us. There’s never a fee unless we get compensation. That’s important to know. So we want to make sure everybody is aware of that.
And again, if you have questions, either give us a call or go to vlaw.com and we’d be happy to help you out.
I want to thank our guests, Barb and John, for joining us. And I want to thank Kitka as well.
And thank you, all of you who are listening in or watching. And we’re here to help. If ever you need us, we’d be honored. Thank you.
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