The settlement a decade ago over complications associated with the pain medication Vioxx is a good measuring stick, Ms. Burch said. Merck, the drug’s manufacturer, created a nearly $5 billion fund, which gave an average award of $147,000 to more than 30,000 litigants. The judge in that case capped the legal fees at 32 percent.
And higher fees are coming out of smaller settlements: Compared with other medical device settlements, the $60,000 average for mesh cases is on the low end. In 2015, Biomet paid an average of about $79,000 to settle just under 2,000 claims from people who had faulty hip implants, according to court filings. Six years ago, Johnson & Johnson settled claims arising from its flawed hip implant product for $2.5 billion — or roughly $250,000 a person.
In one pelvic mesh agreement between Boston Scientific and 3,400 women, the average payout before fees was $53,000, documents show. Just 800 had offers of $100,000 or more, while roughly half received offers of $13,000 or less. And in a $244.7 million settlement negotiated last year between Johnson & Johnson and 4,000 women, the average offer was $59,000, according to court documents.
Henry Garrard, a lawyer with Blasingame, Burch, Garrard & Ashley, an Athens, Ga., law firm that handled both trials and settlements and another firm that sometimes uses a private plane, said focusing on average settlements was “misleading” and ignored all the work the lawyers had done. Women who did not have the mesh removed got smaller offers because their injuries were less severe, he said.
Settlements in mesh cases have tended to be negotiated for a few thousand women at a time, as opposed to one big global deal. Most of the bulk settlements have played out in federal court under the supervision of a judge in West Virginia.
One lawyer who both took cases to trial and handled settlements said he believed many lawyers who settled cases in federal court took on too many clients to properly investigate their claims and push for adequate settlements.
“Never in the field of mass tort litigation has there been such a yawning gap between success in the courtroom and failure at the settlement table,” said Shanin Specter, whose Philadelphia firm, Kline & Specter, has won more than $140 million in jury verdicts in mesh cases.