AMS Transvaginal Mesh Settlements: Good for Victim or AMS?

Los Angeles, CAWhile American Medical Systems was “first out of the gate” to settle its AMS transvaginal mesh claims, one transvaginal mesh attorney says the amounts aren’t enough for pain and suffering that victims have endured. And a recent Boston Scientific settlement of $100 million is like a slap in the face to most AMS settlements of $40,000.

How can you put a price on severe transvaginal mesh side effects? What is it worth to wind up with a divorce because you can no longer have sex with your partner or you can no longer leave the house due to incontinence and constant pain?

Judge Goodwin recently praised AMS for settling its transvaginal mesh lawsuits while other TVM manufacturers (such as Ethicon) have infuriated him because they haven’t settled. In July 2013, Judge Goodwin had selected four bellwether cases for trial: Fontes v. American Medical Systems, Inc., 2:12-cv-02472; Serrano v. American Medical Systems, Inc., 2:12-cv-03719; Jilovec v. American Medical Systems, Inc., 2:12-cv-05561; and Weiler v. American Medical Systems, Inc., 2:12-cv-05836. The trials were slated to commence in June and July of 2014, but the parties settled before the trial.

Talk about timing: Endo International Plc, the owner of American Medical Systems, in May 2014 agreed to settle about 20,000 more mesh claims. It came right on the heels of the FDA’s news release that proposed new orders regarding health risks associated with transvaginal mesh. The FDA’s orders would reclassify “surgical mesh for transvaginal pelvic organ prolapse from a moderate-risk device to a high-risk device and require manufacturers to submit a premarket approval application for the agency to evaluate safety and effectiveness.”

The question remains: Did Endo/AMS do the right thing for plaintiffs in their settlements and is Judge Goodwin praising the company on behalf of plaintiffs, or because it promptly moved through the legal system? Did Endo last year do the math and calculate that almost $1.3 billion, in addition to $54.4 million already paid to resolve its transvaginal mesh lawsuits, would be a whole lot less than having thousands of cases go before a jury?

More than 30,000 plaintiffs in the US filed AMS lawsuits. Endo’s first round of TVM settlements amounted to $54.4 million in June 2013 and the company agreed to pay almost $1.3 billion to resolve more suits over the implants. That amount would average about $40,000 per case.

Back to Boston Scientific. A Delaware jury in this latest Boston Scientific lawsuit also found the company negligent in designing and making the devices and that it had failed to warn patients and doctors about potential risks. According to Reuters (May 28, 2015), the jurors awarded plaintiff Deborah Barba $25 million in compensatory damages, and an additional $75 million in punitive damages - a far cry from $40,000 that AMS shelled out to each of its TVM claimants. Bloomberg said that the jurors also determined that Boston Scientific was fraudulent due to its failure to alert doctors that the transvaginal mesh design was flawed.

According to Law360 (May 11, 2015), Endo/AMS had agreed to settle with 108 plaintiffs in the multidistrict litigation In re: American Medical Systems Inc. Pelvic Repair System Products Liability Litigation, case number 2:12-md-02325, in the U.S. District Court for the Southern District of West Virginia. Judge Goodwin said that “the parties had until April 2016 to submit an agreed order of dismissal with prejudice; otherwise, the cases will be dismissed without prejudice.”

Late last year, AMS agreed to settle most of the 20,000 transvaginal mesh suits remaining for around $1.6 billion. Judge Goodwin warned that AMS and other manufacturers would likely have to pay out billions more if the cases went to trial. This $100 million Boston Scientific verdict confirmed his warning.