Updated May 28, 2020
Hernia mesh settlements are compensation packages offered by manufacturers to victims who filed lawsuits. By settling, the victims (“plaintiffs”) agree to forgo a trial. Settlement amounts depend on various factors: The defendant being sued, the extent of the plaintiff’s injuries, and whether the lawsuit was part of a multidistrict litigation (MDL).
- 1. Are settlements individual or collective?
- 2. What are compensatory damages?
- 3. How are hernia mesh settlements calculated?
- 4. Have some hernia mesh cases already settled?
- 5. Do trial verdicts affect settlement amounts?
1. Are settlements individual or collective?
Hernia mesh settlements are individual. But the settlement process can be collective. It depends on the case.
In an individual lawsuit, a settlement ends the case. The defendant pays an agreed-upon sum to the victim. Then the plaintiff drops the lawsuit.
In a multidistrict litigation, settlements are slightly different. MDLs are numerous individual but similar lawsuits. And they consolidate into one federal district court. This helps streamline pretrial procedures such as:
- The discovery of evidence,
- Witness and expert depositions and interrogatories,
- Evidentiary challenges,
- Motions to dismiss, and
- Summary judgment motions
Eventually, judges allow a few cases to go to trial. These are called bellwether trials. And how they turn out sets the stage for future negotiations for all the other plaintiffs.
Defendants can settle an MDL by paying out one lump sum. The term for this is global settlement. The amount each plaintiff then collects depends on the case.
Take mesh plaintiffs with multiple revision surgeries. They would probably collect a large portion of the settlement. Meanwhile, plaintiffs who had no revisions might get less.
Currently there are three federal court MDLs against hernia mesh manufacturers in the United States:
- In Re: Ethicon, Case No: 1:17-md-02782-RWS (subsidiary of Johnson & Johnson) in the Northern District of Georgia
- In Re: Davol, Inc./C.R. Bard, Inc., Case No: 2:18-md-2846 in the Southern District of Ohio
- In Re: Atrium Medical Corp., Case No: 16-md-2753 LM in the District of New Hampshire
In sum, settlements are a way to avoid trial. Both sides agree to a dollar amount. Plaintiffs recoup some or all of their losses. And the defendant avoids admitting guilt.
2. What are compensatory damages?
Compensatory damages are what defendants pay plaintiffs to “make them whole.” Both sides may disagree on the extent of the plaintiff’s losses. Part of the settlement process in defective hernia mesh claims is coming to a number both sides can agree to. Compensatory damages can cover:
- Past and future medical expenses
- Lost wages
- Reduced ability to earn a living
- Pain and suffering
- Loss of consortium felt by the victim’s spouse
- Loss of life’s enjoyments
This is different from punitive damages. The purpose of punitive damages is to punish defendants. Not to make plaintiffs whole. In most cases, settlements do not include punitive damages.
Punitive damages come into play in mass tort trials. If the defendant loses, the judge may impose these damages. They are often bigger than compensatory damages.
3. How are hernia mesh settlements calculated?
The biggest factor in determining settlements is the type of case. MDL global settlements are very structured. Much more so than for individual lawsuits.
3.1 Individual cases
In individual lawsuits, all negotiations revolve around the plaintiff. Not hundreds or thousands of other plaintiffs. Therefore, plaintiffs can present evidence of their unique losses. And plaintiffs may feel more “heard” by the defendant. But without the “safety in numbers” of fellow plaintiffs, plaintiffs may feel shortchanged or ignored.
Hernia mesh MDL plaintiffs have less opportunity to tell their stories. Instead, each plaintiff has a fact sheet. It contains such information as:
- Contact information.
- Age. (Older victims may get less money than younger ones.)
- Medical history. (Victims that were healthy before the mesh may get more money than victims who were already sick. This is because their losses are more. They may no longer be able to do certain activities. And their lives may be more shortened.)
- Marital status. (Only married people can claim loss of consortium.)
- Employment history. (Plaintiffs who had a higher earning capacity may get more money. This is because their losses are higher than those of low-income plaintiffs.)
- Hernia mesh implant and procedure.
- Hernia repair surgery (if any).
- Removal surgery (if any).
- Hernia recurrence (if any).
- Hernia mesh complications, and hernia mesh surgery complications. (The more serious the injuries, the higher the compensation.)
- Type of hernia mesh.
- Whether the Food and Drug Administration (FDA) recalled the surgical mesh implant.
- Temporary and ongoing symptoms, serious complications, and side effects, such as bowel obstruction, bowel perforation, and chronic pain from the medical device.
- Information about the doctors and surgeons.
- Evidence of lost wages from the defective mesh injuries.1
Then attorneys categorize these symptoms and situations. Ultimately, they use a matrix or grid settlement to calculate the final payout. Plaintiffs who check certain boxes may be entitled to more money.
Sometimes attorneys create an online calculator. And plaintiffs can use it to estimate their compensatory damages.
Dissatisfied plaintiffs can appeal their award. Each MDL handles appeals differently. Some use mediators or magistrate judges. And they hear evidence from the plaintiff about why the settlement was insufficient.
MDL settlements are less personal than in individual lawsuits. But they are efficient. And MDL cases tend to settle first.
4. Have some hernia mesh cases already settled?
Thousands of lawsuits have settled. But thousands are pending.
One MDL settlement occurred in 2011. It involved Bard’s Kugel Composix hernia mesh. After Bard lost a bellwether trial, it settled more than 2,000 cases. The settlement amounted to $184 million.2 Each plaintiff received $60,000 on average.
Many non-MDL lawsuits against mesh makers settled as well. But the details of those settlements are private. So there is little reliable information about settlement amounts for specific hernia mesh devices.
5. Do trial verdicts affect settlement amounts?
Yes. Bellwether verdicts give parties a jumping-off point for negotiations.
Bard’s global settlement in 2011 illustrates this. A trial concluded with a $1.5 million verdict for the victim. Bard then settled similar lawsuits against it.
But when defendants win trials, it can drive down the value of lawsuit settlements. Or defendants can refuse to settle at all.
Injured? We are here to help you…
Have you or your loved one had your mesh implant malfunction? Are the medical bills piling up? Our law firm may be able to win you a large product liability settlement to cover all your losses and more through our hernia mesh litigation. Call our office today or complete our online form. We provide free consultations and case reviews and will discuss your options with you.
- See e.g., In re: Davol, Inc./C.R. Bard, 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).