The final word in our Book Symposium on Beth Burch’s The Pain Brokers goes to, its author, Elizabeth Chamblee Burch (Georgia). I will put up a post later today collecting everything from the symposium.
I have been writing about multidistrict litigation since before I graduated from law school in 2004. When I reached midlife, I began to wonder about the point of my efforts—what, if anything, has changed? The answer: not much. Maybe not anything.
Most stakeholders in mass torts—plaintiffs’ attorneys, defense attorneys, and MDL judges—have a vested interest in the status quo. Lawyers on both sides are mostly repeat players who have grown rich from MDLs. Judges (with some notable exceptions) favor settlements and lack incentives to look too deeply under the procedural hood. These are the people I have been writing to for over two decades.
The thought that one more law review article might do the trick was laughable.
So I did what academics do and went back to school to get an MFA in narrative nonfiction from UGA’s Grady School of Journalism. Over the course of two years, I shed legalese and learned how to interview and write for story. I met with pelvic-mesh plaintiffs in forlorn long-term stay motels, former kingpins in upscale Italian restaurants, insiders in Las Vegas’s Mass Torts Made Perfect, and felons in Brooklyn’s federal courthouse. They recounted the kind of stories that do not appear in polite small talk or law reviews. Those true tales became The Pain Brokers.
At its heart, the book is about misplaced trust, systemic failings, and American greed. So much greed. It centers on a scheme to lure women with pelvic mesh to south Florida to have it removed at seedy chiropractors’ offices to jack up the value of their settlement and benefit the plaintiffs’ lawyers, doctors, and medical funders—but not the women. Had women used insurance and a real hospital, it would have cost them somewhere between $600 and $1,000. A spin through the removal mill ran $69,000 to $120,000.
Why might women do such a thing? A data breach in India gave callers their most intimate medical details, and they used that to convince mesh patients they had a ticking time bomb in them, had to fly to Florida immediately to have it removed (or they would die), and wouldn’t have to pay a dime. Some women even thought the calls were from the mesh manufacturers themselves.
The book is also about two unlikely allies: Barbara Binis, who grew up in blue-collar Buffalo as the oldest of five children in a strict Catholic home, is a seasoned Philadelphia defense attorney hired to do financial damage control for a mesh manufacturer. J.R. Baxter, a newly minted small-town Arkansas lawyer who shunned big law to join his dad’s solo practice, is trying to achieve justice for the three women at the center of the book—Jerri Plummer, Barb Shepard, and Sharon Gore—along with over 180 others.
There are lots of other colorful characters too, like a 6ft plus hulking figure with a flamingo pink goatee, a call center salesman in Versace with gold-rimmed, rose-colored aviator glasses, and a former Marine Corps company commander with arm-sleeve tattoos of the grim reaper and the angel of justice. They used their ill-gotten gains on fleets of luxury cars, ox-blood red alligator-skin boots, and platinum toe-rings for their mistresses.
So many failings enabled these shenanigans: medical device companies placed pelvic mesh on the market without testing it for that use beforehand. The FDA approved mesh through a loophole: the 510(k) submission process. And as the mesh began to unravel in women across the globe, lawyers, doctors, litigation/medical funders, call centers, and middlemen swarmed to milk every cent possible from injured women. Add to that the growing number of states that allow nonlawyers to form law firms with lawyers, and Hippocratic oaths, professional ethics, and morality be damned.
Backend enforcement gaps add to these failings: state and federal prosecutors have only so much time, criminal statutes of limitation can inhibit charges, and there is no federal anti-kickback statute that covers medical liens.
It’d be nice if we could chalk these failings up to a perfect storm that is unlikely to occur again, but that’s simply not the case. Just a few weeks ago, a telehealth company (GuardDog Telehealth) admitted to accessing patients’ medical records to sell them to mass tort plaintiffs’ lawyers.
As I speak about The Pain Brokers to audiences across the United States, I’m asked what we can do to fix it. If only I had a thirty second salve.
I have written extensively about the ways we might improve MDLs. Here are a few:
- Judges should consider conflicts of interest and adequate representation in selecting lead lawyers and then ask plaintiffs to evaluate leaders as their case winds down. They can also nudge lead lawyers by tying their common-benefit fees explicitly to the benefit that those attorneys confer on the plaintiffs as opposed to the sticker price of the settlement fund. And by regularly remanding cases that are not served by centralization as well as plaintiffs who do not want to settle, judges can dislodge the omnipotence lead lawyers exercise, encourage lawyers to take only those cases they’d be willing to litigate, and give plaintiff the freedom to have their day in court.
- Open courts to plaintiffs by allowing them to watch proceedings online.
- Lawyers or courts should setup online groups or forums where plaintiffs can exchange information with one another and communicate with lead lawyers without endangering attorney-client privilege.
- Increase jurisdictional redundancy and access to appellate courts to increase reviewability, test creative procedural mechanisms, and develop substantive law.
- Require lawyers to take their contingency fees out of the net fees (after costs) rather than the gross, to encourage fiscal responsibility.
- State bars and MDL judges should take plaintiffs’ complaints about their attorneys’ ethical failings seriously and sanction, discipline, and disbar individual lawyers as appropriate.
To be sure, none of these proposals touch many of the failings identified above, including the lack of universal healthcare and whether professions like law and medicine should be allowed to self-enforce.
I have many thoughts, but few easy answers, which makes me exceedingly grateful to have all-star academics like Brooke Coleman, Myriam Gilles, Renee Knake Jefferson, Tony Sebok, and Brad Wendel weigh in. I hope this is the start of critically important discussions that lead to actual reforms to improve every aspect of these widespread failures without impeding Americans’ access not just to the courts, but to actual justice.