When Trial is Too "Expensive" for Law Firms

For the last few months, I've been in touch with many TVM and POP mesh plaintiffs as part of a procedural justice study that I'm conducting.  Recently, I've heard from multiple sources that the Aylstock, Witkin, Kreis & Overholtz law firm has been sending out letters to clients who haven't settled, suggesting that they dismiss their case without prejudice to avoid the expense of trial.

 

Who bears trial expenses?  The lawyers, at least initially.  Ultimately, costs and attorneys' fees are deducted from any judgment or settlement.  

 

The text of the letter tells recipients that "Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial." Good, right? That's what most plaintiffs want, I suspect.

 

But wait. The letter continues: "The imposition of these deadlines creates a problem--complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult."  Now, that seems odd.  Why would that be?  A credible threat of trial is what raises settlement values and creates the pressure to settle in the first place.

 

Here's the clincher: the firm wants its clients to dismiss their claim without prejudice to avoid trial. "To avoid this problem" (i.e., the problem of expense for the law firm) "we have reached a potential agreement with Ethicon to dismiss your claim without prejudice. This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs."

 

Wow.  So, the law firm wants their clients to dismiss their cases so that the firm can avoid the expense of actually having to take a case to trial?  The letter then mentions that the firm "believe[s] that it is in your best interest to dismiss your Ethicon case without prejudice" and notes that it recommends that the client accept "your Ethicon settlement offer."

 

Then, "unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice."

 

I'm speechless.

 

The entire letter has been replicated below: 

 

*CORRESPONDENCE ALSO SENT AS HARDCOPY VIA UPS*

Good Morning,

We hope this email finds you well. We would like to share important an important update regarding your transvaginal mesh claim against Ethicon.

As you know, your case is pending in the Ethicon multidistrict litigation (MDL) in West Virginia, overseen by Judge Goodwin. Despite the fact that your Ethicon case is part of a settlement process, Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial.  The imposition of these deadlines creates a problem – complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult. 

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice.  This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs. Because the proposed dismissal is without prejudice, you are entitled to re-file your case against Ethicon in the event that you ultimately reject your settlement offer.  Ethicon, however, has required that any such refiling not happen for one year from the date of dismissal.  Ethicon wants to insure that the settlement process be allowed to run its course without interference from cases in litigation.

  After considering the pros and cons of this potential agreement with Ethicon, we believe that it is in your best interest to dismiss your Ethicon case without prejudice.  We have written to you separately regarding your Ethicon settlement offer and have recommended that you accept the same, however, you chose to request a further review with the Special Master. Though the Special Master is currently reviewing those requests, we believe that the proposed agreement regarding dismissal without prejudice strikes a balance that allows the settlement process to continue without interference.

Accordingly, unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice.  If you do not want us to dismiss your claim without prejudice in accordance with the above, you must contact us by April 24, 2019, and tell us the same.

If we do not hear from you on or before that date, we will dismiss your claim against Ethicon without prejudice. If you have any questions or concerns, or wish to inform us of your desire not to dismiss you claim, our toll free number is (877) 810-4808. We look forward to hearing from you.

Ann Jaye Case Manager Transvaginal Mesh Litigation Aylstock, Witkin, Kreis & Overholtz

17 E. Main Street, Suite 200 Pensacola, FL 32502 Phone: (850) 202-1010 Toll Free: (888) 255-AWKO (2956) Facsimile: (850) 916-7449 Email: ajaye@awkolaw.com