Hernia mesh settlements are packages of compensation offered by hernia mesh manufacturers to victims who have filed hernia mesh lawsuits. These settlement offers have been made and accepted before the lawsuit could go to trial, and aim to compensate the victims for their losses. The amount of these settlements can depend on the defendant being sued, the specific details of the victim's injuries, as well as whether the lawsuit was filed individually or as part of a multidistrict litigation (MDL).
- 1. Will the settlements be individual or collective?
- 2. What are compensatory damages?
- 3. How settlement amounts are determined in hernia mesh cases
- 3.1 Settlements for individual cases
- 3.2 Settlements for hernia mesh lawsuits in an MDL
- 3.3 Factors that can influence a settlement amount
- 4. Have some of the hernia mesh lawsuits already been settled?
- 5. How do trial verdicts affect the settlement amounts?
1. Will the settlements be individual or collective?
A settlement is a mutually agreed upon amount of money that the defendant will pay to the victim for the defendant's alleged wrongdoing. The amount is usually designed to reflect the amount of compensatory damages that both the victim and the defendant agree the victim deserves. In the vast majority of cases, there is a stipulation in the agreement that the settlement does not constitute an admission of guilt by the defendant.
In an individual lawsuit, a settlement ends the case. The defendant pays the settlement amount to the victim, and the victim, in return, drops their lawsuit.
Settlements in multidistrict litigation are slightly different. MDLs are numerous individual lawsuits – sometimes thousands of them – that have been consolidated into one federal district court for pretrial procedures like:
- The discovery of evidence,
- Witness and expert depositions and interrogatories,
- Evidentiary challenges,
- Motions to dismiss, and
- Summary judgment motions.
Defendants can settle an entire MDL by paying out a huge sum of money that can then be distributed to all of the plaintiffs in the MDL. This is called a global settlement and creates a pot of money for the individual lawsuits in the MDL. Plaintiffs are then awarded compensation based on the individual elements of their case from that global settlement amount.
2. What are compensatory damages?
Hernia mesh settlements aim to reflect an amount of compensatory damages that both the plaintiff and the defendant agree that the plaintiff should receive. Compensatory damages consist of financial compensation for all of the losses that stemmed from the defendant's conduct. They include:
- Medical expenses, including anticipated medical expenses for future care,
- Lost wages,
- Reduced ability to earn a living, due to the injuries that were suffered,
- Compensation for physical pain and mental suffering from the injury,
- Compensation for the loss of consortium or companionship felt by the victim's family, and
- The victim's loss of life's enjoyments.
Importantly, compensatory damages do not include punitive damages. Punitive damages are occasionally awarded in mass tort lawsuits. They are meant to punish the defendant for especially egregious conduct, even if it means awarding the plaintiff and victim far more money than they need to be fully compensated. Because nearly all settlements involve the defendant stating that they did nothing wrong, punitive damages are hardly ever a part of a settlement.
3. How are settlement amounts are determined in hernia mesh cases?
The process for determining a settlement amount also depends on whether the case was brought individually or as part of a multidistrict litigation. Settlements that come from global settlements of MDLs are far more structured than those that come from individual lawsuits.
3.1 Settlements for individual cases
Victims who pursue hernia mesh lawsuits on their own behalf will have far more of an opportunity to present evidence that illustrates the losses they have suffered that are unique to them. As a result, some of the compensatory damages that these victims have suffered will be different, and can affect the final settlement amount.
For example, a victim of a hernia mesh device who files their own lawsuit can present evidence that they spent all of their free time competing in bicycle races, and that they pain caused by their hernia mesh implant has made this impossible. The loss of this victim's life enjoyments is unique to them, and would be higher than they would for someone else whose passion was not impacted by the chronic pain caused by their hernia mesh implant. As a result, the victim's claim for compensation would likely be higher, and the settlement amount would be higher, as well, as it would include compensatory damages that would not be present in other cases.
3.2 Settlements for hernia mesh lawsuits in an MDL
Hernia mesh victims who join one of the MDLs against mesh manufacturers are less able to present evidence about the losses that are unique to their case. Instead, their symptoms and situations are often categorized, and the compensatory damages they can be awarded from the global settlement calculated using a matrix settlement or a grid settlement.
Matrix or grid settlements have increasingly been used to disburse global settlements in MDLs to the victims who filed the lawsuits that comprised the multidistrict litigation. Lawyers for the plaintiffs and the defendants in the MDL agree to a plaintiff fact sheet, which includes information specifically tailored to the victim's situation, including:
- Identifying information, like name, address, and contact information,
- Medical history,
- Marital status,
- Education and employment history,
- Hernia mesh implant and procedure, including a mesh removal procedure,
- Medical complications caused by the hernia mesh implant,
- Whether symptoms caused by the implant are ongoing and are likely to continue,
- Information about the medical professionals seen to treat conditions caused by the hernia mesh device, and
- Evidence about wages lost due to the medical conditions caused by the hernia mesh product.1
Each lawsuit that joins the MDL requires the plaintiff in the case to fill out one of these plaintiff fact sheets. The responses on these fact sheets are used to populate a grid, or matrix, created by the plaintiffs' attorneys in the MDL, with each response being calculated to increase or decrease the presumed settlement amount. For example:
- Victims who report higher salaries on their fact sheet would recover more compensation because their lost wages and earning capacity would be diminished by more,
- Older victims would recover less compensation because their life expectancy, and therefore the duration of pain and suffering they would likely experience, would be lower, and
- Married victims would recover more compensation than victims who were single because the married victim's spouse would recover damages for their loss of consortium.
If the MDL reaches a settlement, this grid would determine the presumed compensatory damages that each plaintiff would recover in a settlement.
In some cases, once the settlement grid or settlement matrix has been established, an online calculator is created for interested plaintiffs to see how much their case is likely worth.
Victims who feel that they are not receiving enough compensation for their hernia mesh injury can appeal their award. Different MDLs handle these appeals differently. Many of them use mediators or magistrate judges to hear evidence from the plaintiff about why they are entitled to more compensatory damages than they received from the settlement.
3.3 Factors that can influence a settlement amount
Whether you filed an individual hernia mesh lawsuit or joined a multidistrict litigation to recover compensation for your injuries, the following factors are among those that will impact how much you can expect to recover in a settlement:
- Age, with older victims recovering less compensation than younger ones, based on the idea that younger patients are likely to live longer and suffer more,
- Health, with healthier victims recovering more in compensation on the idea that their injuries are preventing them from doing more activities and reducing their life expectancy by more,
- Profession, with higher earning individuals recovering more compensation for lost wages and lowered earning capacity,
- Marital status, with single victims recovering less because there is no one to recover compensatory damages for loss of consortium, and
- Medical complications, with certain medical repercussions of the hernia mesh being awarded more in compensatory damage than others.
4. Have some of the hernia mesh lawsuits already been settled?
Thousands of lawsuits have been filed against hernia mesh manufacturers for injuries caused by their device. Many of them have been consolidated into three MDLs – one in the Northern District of Georgia against Ethicon,2 the second in the Southern District of Ohio against C.R. Bard and its subsidiary, Davol,3 and the third in the District of New Hampshire against Atrium Medical Corp.4
The MDL against C.R. Bard reached a point where the district court conducted several bellwether trials. When Bard lost one of these bellwether trials in 2011, they quickly settled more than 2,000 of the cases they were facing for a $184 million settlement.5 This settlement provided around $60,000 for each victim, on average.
The other MDLs have not been settled, yet, though progress is being made.
Many individual lawsuits against hernia mesh makers have been settled, as well. However, the details of those settlements are private and include provisions that penalize victims who reveal information about the terms of their settlement. As a result, there is very little reliable information about settlements of individual hernia mesh cases.
5. How do trial verdicts affect the settlement amounts?
In mass tort litigation like hernia mesh claims, settlement amounts are strongly influenced by recent trial verdicts. When bellwether trials in multidistrict litigation come to a conclusion, it can drive a flurry of settlements based on the outcome of the trial.
Bard's massive global settlement in 2011 illustrates how this can happen. Following a bellwether trial that ended with a $1.5 million verdict for the victim, Bard quickly settled similar lawsuits against it.
The outcome of those verdicts can drastically impact the amount of those subsequent settlements. Bellwether trials that end with the jury finding for the defendant can drive down settlement amounts or even lead hernia mesh makers to refuse to settle, at all. On the other hand, huge verdicts, especially those with punitive damage awards, can drive up settlement amounts significantly.
See e.g., In re: Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, MDL 2846 (S.D. Ohio, March 8, 2019) (order regarding plaintiff fact sheets).
BioSpace, “Davol Lawsuits to Largely End with C.R. Bard $184 Million Settlement,” (July 6, 2011).