This is the first essay in our Book Symposium on Beth Burch’s The Pain Brokers. It is from Myriam Gilles (Northwestern).
There’s a version of the civil justice system that law students learn about. Someone is wronged. She finds a lawyer. Together they decide whether to sue, what claims to bring, and when to settle. The legal system exists to serve that person.
Then there’s the version Elizabeth Burch documents in The Pain Brokers.
On its face, Burch’s book is a work of narrative nonfiction about pelvic mesh litigation – the sprawling mass tort casesconcerning medical devices implanted in thousands of women as a way to restore their bodily integrity. It recounts a chilling scheme by lawyers, doctors, litigation funders, and other tort-system entrepreneurs who pushed unnecessary surgeries and other indignities on women in order to increase the settlement value of their claims. But look more closely: criminality aside, The Pain Brokers is really about what happens when the civil justice system learns how to operate without clients.
Welcome to the Claim Pipeline
Here’s how it worked. An overseas data-processing vendor, entrusted with confidential medical files, identifies women who received pelvic mesh implants. A call center reaches out, advising that the women are in urgent need of surgery to remove the mesh. The call-center script directs the women to DocuSign packets containing law firm retainers and medical-provider agreements. The DocuSign packets, Burch reports, are designed to steer signatories directly to the signature page and past the legal text. A medical provider schedules revision surgery. A litigation funder advances a loan to cover medical costs. And just like that, a woman has entered the mass tort system.
She didn’t choose her lawyer. She may never speak to one. Her injury – intimate, serious, often life-altering – has been converted into a line item, an asset to be routed, valued, and resolved by a vertically integrated infrastructure operating largely out of her view.
At 1000 Corporate Drive in Fort Lauderdale, Burch finds the physical hub of the operation: a call center, two law firms, a medical assistance service, and a litigation funder all under one roof. The arrangement wasn’t incidental. It was designed for scale – the capacity to acquire and process hundreds of claims a day.
When American Medical Systems agreed to settle thousands of mesh cases for $830 million, the economics came into focus fast. Women who had undergone revision surgery were eligible for significantly more compensation than those who hadn’t. Surgery, in other words, determined claim value. The operators at Corporate Drive responded by steering women toward revision surgery through urgency scripts, prearranged travel, and loan packets embedded in DocuSign forms. What looked like medical decision-making was actually settlement optimization.
As one defense lawyer put it, the women’s claims were “packaged and sold to lawyers like chattel, not like clients.”
This Isn’t Just a Story About Rogue Actors
What makes Burch’s account so unsettling – and so important – is that it’s not just about a few bad lawyers who can be disbarred and forgotten. Strip away the criminality she uncovers, and much of what remains looks a lot like modern mass tort litigation functioning as designed: intake at scale, repeat-player coordination, and the management of claim inventories.
Television and social media advertising recruit plaintiffs in litigation alleging harm due to exposure to talcum powder, Roundup, PFAS contamination and many others. Potential claimants enter through standardized intake forms and mass-generated retainer agreements before any meaningful interaction with counsel. Their cases are aggregated, valued through settlement grids, and negotiated by plaintiffs’ leadership committees and defense counsel – repeat players who know the game, know each other, and are not playing on behalf of any individual plaintiff.
From the outside, the system looks like civil justice functioning. Claims are filed, settlements negotiated, money changes hands. Yet the one thing this machinery fails to produce is clients in any meaningful sense of the word. The women Burch describes possess formal legal rights and are formally recognized as litigants. They sign retainer agreements, receive settlement allocations, appear on court dockets. Yet they exercise remarkably little control over the legal claims brought in their names.
Procedural Theory Has No Words for This
Existing scholarship tends to frame procedural injustice in one of two ways.
The first is exclusion: people can’t get into the courthouse. Filing fees are too high, lawyers are too scarce, rules are too complex. The remedy is access – more legal aid, simpler rules, fee waivers.
The second is disloyalty: a lawyer who is supposed to represent her client instead betrays her. The remedy is better policing of conflicts, stronger ethics rules, and tighter judicial oversight.
But Burch’s plaintiffs fit neither account. They aren’t excluded from the system; they’re deep inside it, generating the economic activity that sustains the entire mass tort ecosystem. And the problem isn’t simply that one or two lawyers betrayed them. It’s structural: the litigation proceeds without their authorship. Their claims are assembled, valued, and resolved by institutional actors – lead generators, referral firms, MDL leadership, litigation funders – whose coordination takes place entirely outside the spaces where procedural doctrine imagines clients exercising judgment.
This is a third form of procedural injustice: not exclusion, not disloyalty, but dispossession. The litigant is inside the system and represented by counsel, yet the litigation proceeds without her.
The Moment Agency Reappears
The most telling moment in Burch’s account comes when one of her subjects, Jerri Plummer, tries to fight back.
After three years in which her original lawyers had done little more than file a short-form complaint adding her name to the West Virginia MDL, Jerri fired them and hired new counsel. Those lawyers uncovered the broader fraudulent scheme – one that had turned mesh litigation into, in their words, “a cash cow… for everyone except the women who had the device implanted in their bodies.”
But Jerri’s DocuSign retainer contained an arbitration clause. The defendants moved to enforce it.
What followed reveals a familiar tension in arbitration litigation. To avoid arbitration, Jerri’s lawyers argued that she lacked the education and sophistication to have meaningfully consented to the agreement. Defense counsel responded that she had completed tenth grade and had previously been found legally competent in a criminal proceeding. But whether she was too unsophisticated to have understood what she signed or competent enough to be bound by it, Jerri’s agency ultimately matters only at the moment the agreement is enforced against her. Throughout the mass tort claim’s lifecycle, the client is invisible – to courts, to doctrine, and often to the lawyers making the consequential decisions. She reappears at exactly one moment: when her prior consent is invoked to remove her from the litigation system altogether.
What Adjudicative Legitimacy Requires
Civil adjudication has always rested on a simple normative premise: its outcomes are legitimate because they trace back, however imperfectly, to the authorization of the people whose rights are being resolved. That is why we have adequacy requirements in class actions, why judges review class settlements, and why clients are supposed to decide whether to accept a settlement offer.
The Pain Brokers reveals what happens when that premise is quietly abandoned while the formal machinery of civil justice keeps running. Courts still supervise. Settlements still resolve. Judgments still enter. But the figure that once gave the process its legitimacy – the client – has been replaced by an institutional infrastructure that performs the same functions without her.
What remains is litigation without authorship.