Burch tracks these cases, and has conducted her own research on plaintiffs’ experiences. Her findings are sobering: plaintiffs almost never feel that justice has been served, even when they get a financial settlement, since the cases take forever and the plaintiffs frequently lose anywhere from thirty to fifty per cent of their settlements to fees. Lawyers on both sides report that they find the cases maddening, too, describing them as black holes into which they disappear for years, with only a tiny cabal emerging with the seven- and eight-figure paydays for which the plaintiff’s bar has become famous. The judges and magistrates who oversee M.D.L.s are often buried in millions of pages of discovery, court filings, and depositions, and feel pressured into avoiding trials and reaching global settlements hastily. Corporations themselves claim that they are besieged by junk science, dodgy recruiters who troll for clients both online and with expensive advertising (if they’re not just inventing clients wholesale), and questionable third-party financers—including private-equity firms and hedge funds that are turning legal services into another financial market.
For an expert in such an unlikable form of litigation, Burch is remarkably likable. She is quick to answer questions and quick-witted as well, a purveyor of analogies and metaphors to explicate arcane legal concepts and a walking archive of legal minutiae going back to the origins of product-liability law—the kind of professor a student hopes to find. She is also the kind of professor who is apparently always a student: not long after I met her, she finished an M.F.A. in narrative nonfiction at the University of Georgia’s journalism school and mentioned in an e-mail that she was “working on a new book with a complicated plot.”
“A complicated plot” is an understatement for the debacle that Burch describes in “The Pain Brokers.” M.D.L.s involving allegations of product liability are awful even when no liability is found, for at their core is real harm, from excruciating symptoms and grievous injury to the death of loved ones, and that harm persists even if the courts conclude causation can’t be proved or if they find that the product in question was not defective. The pelvic-mesh scandal, though, was particularly awful, and everyone involved comes off badly.
Pelvic mesh is made from polypropylene, the same stuff that’s in drywall, rope, shampoo bottles, and car-battery casings. Medical mesh had long been used to treat hernias in men, so manufacturers were able to exploit an expedited approval process that did not require clinical trials to prove the device was safe and effective since it was “substantially equivalent” to an already used device. Manufacturers began marketing the mesh to women in the late nineties as a miracle material for plugging bladder leaks and holding prolapsed organs in place. But some ten to fifteen per cent of the almost ten million women around the world with transvaginal mesh experienced complications, including bacterial infections, incontinence, organ perforation, and excruciating pain. In 2019, the F.D.A. finally banned the use of mesh for pelvic organ prolapse. (The companies that produced the mesh, including Johnson & Johnson and Boston Scientific, have maintained that their products were safe.)
Hundreds of thousands of women like Sharon Gore, Barbara Shepard, and Jerri Plummer had mesh implants in their bodies that regulators acknowledged could lead to serious complications. In some cases, doctors discouraged the risky removal of the mesh, which, by design, bonds with human tissue. Other women had experienced relief from their original symptoms and had no reason to proactively remove the mesh that wasn’t harming them. But for the lawyers who chase product-liability cases, plaintiffs were more valuable if their mesh had been removed: removal is definitive evidence of a defective device, providing proof of financial damages for settlement purposes. The value of this mesh litigation is thought to be some eleven billion dollars, and Burch estimates that nearly half of it will go to lawyers.
That’s why Alpha Law, the firm at the heart of “The Pain Brokers,” worked so hard to recruit women, not only to be its clients but to insist that they have their mesh removed, making them the most lucrative possible clients, potentially worth ten to fifteen times more than if they still had their mesh. Some of these women believed that their removal surgeries would be free but were instead charged exorbitant surgical fees—and exorbitant interest rates on the loans issued to pay for those surgeries and for related travel. Then they were hit with additional legal fees for filings they did not always know were being undertaken on their behalf. Alpha Law never expected to represent any of these women in court, Burch writes. From the beginning, it planned to sell them— bundled, like mortgages, and proffered to the highest bidder.