Recruiting Women to Have Surgery In Order to Bolster Damages in Product Liability Class Action Suits

Lawyers are taking a step back in product liability cases and recruiting clients.  Using marketing firms and funding from banks and hedge funds, lawyers are locate women who have had a mesh implant -- either the the Boston Scientific or Johnson & Johnson brand.  They then use the information from their medical records (and it is unclear how they obtained those medical records) ot urge the women to have their mesh implants removed. The lawyers then provide the location for the surgery along with a doctor and other staff.  The women do not pay for the removal because the cost of the removal and resulting pain and discomfort will be part of the lawyers' damage recovery in their class action suits against Boston Scientific and Johnson & Johnson. If the lawyer recovers damages, the women pay nothing and, in fact, obtain damages for their pain and suffering.  If the lawyer does not recover any damages, the women must pay back the cost of the surgery plus double-digit interest. Matthew Goldstein and Jessica Silver-Greenberg, "How Profiteers Coax Women Into Surgery," New York Times,  April 15, 2018, p. A1. However, the bulk of their recovery goes to reimburse for the surgery costs (which have had interest running) and their lawyers' contingent fees. 

The doctors participating in the program earn up to $14,000 per day for the surgeries.  The firms financing the surgeries, such as Medstar Funding, maintain that no women have undergone unnecessary surgery/ . They cite doctors' willingness to perform their surgery, according to the lawyers involved, means that the surgeries were not unnecessary because no physician would risk his license. 

The women who have had the surgeries have been experiencing permanent damage resulting from them.  Several of them are now suing the firms that financed their surgeries.  The lawyers being named in the suits say that they had no relationship with the marketing firms that were involved in recruiting women for the removal surgeries.  During the litigation by the women, those involved in the marketing firms have taken the Fifth Amendment in depositions.  They are unwilling to disclose any financing arrangements they have had or their relationships with the lawyers who took the women's cases after their surgeries. 

The ethical issues involved in this network that builds clients for mass tort litigation are extensive and, as yet, unaddressed. The litigation is based on claims of nondisclosure as well as the contract defense of duress and undue influence.  The women felt that they were receiving medical counseling because the marketing firms knew so much about their specific medical conditions and history.  No one has, as yet, determined how those firms got the private information on the women. 

DISCUSSION STARTERS

Explain what the financing, marketing, and law firms are doing with patients who have mesh implants.

Discuss the ethical issues in the program.