A recent NLJ story, “Fee Fight Spurs Departures from Ethicon MDL Team,” reports that a battle over legal fees and costs has prompted three lawyers to withdraw from the plaintiffs leadership team in the multidistrict litigation over power morcellators made by Johnson & Johnson’s Ethicon Inc.
After a hearing on Wednesday before a federal judge in Kansas, two plaintiffs lawyers—Rebecca King, an attorney at Houston’s Tracey & Fox, and François Blaudeau, of counsel at Heninger Garrison Davis in Birmingham—resigned from the 20-person plaintiffs steering committee, according to co-lead counsel Paul Pennock.
A third committee member, Avram Blair, of Avram Blair & Associates in Houston, also resigned after a similar fee dispute, said Pennock, managing attorney at New York’s Weitz & Luxenberg.
The MDL’s committee was noted for being the first to involve a majority of women members. Their departures leave 10 women attorneys on a 17-person committee.
Those lawyers along with two other plaintiffs attorneys, one of whom also served on the committee, claimed that they should not have to pay into a proposed common benefit fund for cases they had just settled.
A common benefit fund charges a “hold back” amount on settlements and judgments of individual cases in order to pay for the attorney fees and costs that lead counsel incur in an MDL.
Pennock, who moved to establish the fund on Dec. 31, had insisted that lawyers with recent settlements retroactively pay 2 percent of their fees and costs to the fund given that they were precipitated by the formation of an MDL and plaintiffs steering committee.
After the hearing, Pennock told The NLJ that he agreed to remove the 2 percent requirement and make other changes to the fund, though he declined to say what those would be. He also confirmed the committee’s resignations.
“We resolved our differences and they are out, and we’re moving forward,” Pennock said. He said he wasn’t sure whether the committee would replace them.
More than 30 lawsuits have been filed alleging that Ethicon’s power morcellators—medical devices used in laparoscopic uterine surgeries—have caused women to develop an aggressive form of cancer. Ethicon pulled those devices from shelves in 2014 following a U.S. Food and Drug Administration safety advisory. The cases against Ethicon were coordinated in an MDL on Oct. 15.
King and Blaudeau filed motions on Dec. 30 and Jan. 4 to resign from the committee after settling cases against Ethicon. Both lawyers joined Blair and Molly Hoffman of Fay Kaplan Law in Washington, another plaintiffs lawyer, in opposing the fund’s approval.
Pennock’s proposal also included holdbacks for future settlements of up to 12 percent fees and costs – an amount that another plaintiffs lawyer, Andrew Sciolla of Pogust Braslow & Millrood in Conshohocken, Pennsylvania, called “excessive” in a Jan. 21 motion.