A fourth law firm has objected to its share of common benefit fees in the transvaginal mesh litigation, insisting that lawyers tasked with distributing the $550 million fund failed to compensate it for work in a critical New Jersey trial.
Bernstein Liebhard, based in New York, joins three other law firms that have objected to their allocation of common benefit fees, which are designed to compensate lawyers for work that had a “common benefit” to all the litigation over transvaginal mesh devices. More than 100,000 lawsuits were filed over the devices, most of them coordinated in multidistrict litigation in federal court in West Virginia. But one of the first trials in the nation was in New Jersey’s Atlantic County Superior Court, where one of the defendants, Johnson & Johnson’s Ethicon, lost an $11 million verdict in 2013.
In a March 29 objection, Bernstein Liebhard claims that the fee and cost committee in the multidistrict litigation, in recommending less than $1.4 million in fees, failed to account for the firm’s work in that trial. Under a 2012 agreement, attached to Bernstein Liebhard’s objection, the MDL leadership had agreed to have a representative of the New Jersey cases on the fee and cost committee.
“But the MDL made no effort to appoint a NJ firm to the FCC and even ignored an express request to do so,” wrote Bernstein Liebhard attorney Mike Hissam, of Hissam Forman Donovan Ritchie in Charleston, West Virginia, in the objection. “The NJ firms never served on the FCC. Now, the two NJ firms that expended the most effort for the MDL plaintiffs object to the fee allocation.”
Neither Hissam, nor Bernstein Liebhard name partners Stanley Bernstein and Sandy Liebhard, responded to a request for comment.
Henry Garrard, a shareholder at Blasingame, Burch, Garrard & Ashley in Athens, Georgia, who is chairman of the fee and cost committee, declined to comment but noted in an email that “it was up to the court as to membership on the FCC and the court did due deliberation determining his committee.”
The fee and cost committee’s responses to the objections are due on April 9.
In all, 94 plaintiffs law firms received common benefit fees in the mesh cases. On March 12, the fee and cost committee and Daniel Stack, a retired judge on the Madison County, Illinois, Circuit Court appointed to review the fee allocation process, issued their final recommendations on how to allocate the fees.
Three other firms have objected to their fees: Philadelphia’s Kline & Specter; Mazie Slater Katz & Freeman, based in Roseland, New Jersey; and Anderson Law Offices in Cleveland. Three of the four firms worked on the first mesh trial against Ethicon in the nation, which involved plaintiff Linda Gross, a South Dakota woman who had 18 surgeries to fix injuries caused by the Gynecare Prolift mesh implant.
In a March 26 objection over $6.02 million in fees, Mazie Slater partner Adam Slater raised concerns that some law firms on the fee and cost committee had resorted to self-dealing and bill padding to ensure they would receive the majority of the fees, citing comments that Stack made to him. Slater also referenced the 2012 agreement involving the New Jersey cases, noting that his firm was lead counsel in the first Ethicon trial.
Anderson Law Offices, which raised similar concerns, also worked on that trial.
Bernstein Liebhard, in its objection, said its partner “played a significant role” in both the New Jersey trial and the multidistrict litigation against Ethicon. That partner, Jeffrey Grand, now at Seeger Weiss in New York, did not respond to a request for comment.
Grand signed the 2012 agreement, along with Slater and Jillian Roman of Cohen, Placitella & Roth in Philadelphia. Two members of the fee and cost committee, Renée Baggett of Aylstock, Witkin, Kreis & Overholtz in Pensacola, Florida, and Thomas Cartmell of Kansas City, Missouri-based Wagstaff & Cartmell, co-lead counsel in the Ethicon MDL, also signed the agreement.
Roman, Baggett and Cartmell did not respond to requests for comment.
Under the agreement, the New Jersey firms agreed to share “work product and other good and valuable common-benefit work” with the leadership in the MDL against Ethicon. Such work, the agreement stated, would be “fairly compensated,” and the MDL leadership agreed to “use their best efforts to ensure that the MDL court fairly compensates the aforesaid common benefit work.” The MDL leadership also agreed to “recommend to the district court, and give their best efforts to ensure, that the fee committee include representation from the NJ litigation.”
Instead, Hissam wrote, the fee committee cut 455 of Bernstein Liebhard’s 4,407 billable hours from its final allocation.
Bernstein Liebhard attached a comparison of “blended” hourly rates in its allocation—about $352—and that of each of the eight firms on the fee and cost committee, such as Blasingame Burch, whose fee award comes out to $847 per hour. Bernstein Liebhard also based its fee request for $3.2 million on an “average blended hourly rate” of those eight law firms: About $730.
“Reviewing the blended rates awarded in the MDL shows that BL’s fee is patently unfair,” Hissam wrote. “Is a partner’s time as valuable as a paralegal or low-level document reviewing attorney? Of course not—but the recommended allocation gives no information to discern how comparable timekeepers or work is to be compensated.”