A Terrifying Scam and the System That Made It Possible - The New Yorker

When the telephone rang shortly before Thanksgiving in 2013, Sharon Gore was surprised by how much the caller knew about her private medical history. A forty-six-year-old special-education coördinator in South Carolina, Gore was mostly in great shape, but after three Cesarean sections her abdominal muscles were weak, and she sometimes experienced discomfort and sharp pain. She had been diagnosed with a prolapsed uterus, and her gynecologist performed a partial hysterectomy, but that surgery didn’t fix all of Gore’s problems, and the mystery caller that day seemed to know every intimate detail of her ongoing symptoms: urinary-tract infections, tingling and numbness, and pain during intercourse.

“You have a ticking time bomb in you,” the woman on the phone told Gore menacingly, explaining that her symptoms stemmed from the mesh sling that her gynecologist had placed during surgery. Gore hadn’t even known there was mesh in her body. She assumed that the caller was with Boston Scientific, a company that she was told had manufactured the mesh, and which was now proposing to remove it, apparently at no cost, so long as she signed a few forms.

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When Barbara Shepard got the same call a year later at her home in New Hampshire, she thought it was someone from Johnson & Johnson, since that company had made the pelvic mesh she’d had inserted seven years earlier. A school-bus driver who also worked the evening shift at a local light factory, Shepard had trouble controlling her bladder after having two kids. When neither Kegel exercises nor prescription drugs helped, leaving her plagued by accidents and reliant on pads, she opted into having a mesh sling installed. The woman who called Shepard said she needed to have the mesh removed, asked if she had a lawyer, and seemingly offered to cover the cost of the surgery, which would need to be performed at a specific clinic in Florida. She could even bring a friend, whose travel expenses would also be covered.

Forty-five-year-old Jerri Plummer was told that she’d have to go to Florida as well, when later that same year she got a call on her cellphone about defective mesh, hers inserted around her bladder to fix incontinence issues, too. Plummer was living with her daughter in Arkansas, waking up at 4 A.M. most days to make breakfast for her four grandchildren and then get them ready for school. She had been getting these calls for a few weeks now, but was afraid of any costs that she might incur from another surgery. She lived off seven hundred and fifty dollars a month in disability benefits and another hundred and twenty-nine in food stamps, and she worried about her family’s finances constantly; flying to Florida for the surgery would have been her first time on an airplane, and she was reluctant about the whole idea. But her fourteen-year-old granddaughter eavesdropped on one of the calls, and then pleaded with Plummer to accept: “Granny, please go. I want you to go. I don’t want you to die.”

How Gore, Shepard, and Plummer—along with hundreds of other women—found themselves on operating tables in surgery centers and strip malls several states away from where they lived is the outrageous scandal recounted in Elizabeth Chamblee Burch’s new book, “The Pain Brokers: How Con Men, Call Centers, and Rogue Doctors Fuel America’s Lawsuit Factory” (Atria/One Signal). The calls that the women received were not from the doctors who had placed their mesh, nor from the hospital networks where their mesh surgeries had taken place, nor from the manufacturers that pushed for the use of pelvic mesh in surgeries that had previously been done successfully with stitches. They were not even from the lawyers who sued those companies and obtained billion-dollar settlements for patients who claimed that their pain, bleeding, and organ damage were caused by mesh—and they weren’t from representatives of the states that believed the manufacturers had engaged in deceptive marketing of these products, concealing severe risks and side effects. The calls, Burch writes, were part of a forty-million-dollar scam that should terrify us all: marketing firms allegedly used confidential medical information to solicit clients for lawyers whom those clients never met, and coördinated with finance companies that pushed high-interest loans for unneeded surgeries by doctors who had been recruited by the marketers themselves.

Burch isn’t typically in the business of terrifying people. She teaches civil procedure, class actions, and mass torts at the University of Georgia School of Law. The last of those areas is the subject of this book. For anyone who didn’t sit for the bar exam, she explains in “The Pain Brokers” that a mass tort “is personal-injury litigation on steroids. It’s not just one fender-bender victim with whiplash out for a few thousand bucks. Nor is it a class action over $3 ATM fees that alerts consumers via junk mail. It’s hundreds, thousands, and sometimes more than one hundred thousand people suing over life-changing physical harm from asbestos-laced baby powder, N.F.L. concussions, pacemakers, hip implants, and other medical products.”

Burch is the Jane Goodall of complex litigation, which she’s devoted some twenty years of her life to observing. She studies the terrain, whether it’s a federal court in South Dakota or the Ninth Circuit Court of Appeals. She humanizes plaintiffs, surveying people whose cases have been consolidated into large lawsuits and offering a data-driven account of how frustrating they find the experience. And she traces the serpentine pathways that these cases can travel through the courts, clarifying how drug manufacturers might use bankruptcy to cap damages, and what scientific hurdles plaintiffs might face in proving a particular pesticide caused their cancer.

When I wrote a story, a few years ago, about the tens of thousands of women suing Johnson & Johnson, alleging that the company’s talc-based baby powder had caused their ovarian cancer or mesothelioma, Burch was a thoughtful source. (Johnson & Johnson maintained that its products were safe, but has pulled the talc-based baby powder from the market.) She talked me through that specific M.D.L., or multidistrict litigation, and she outlined the frustrations of everyone involved in such cases. M.D.L.s were created by Congress in 1968 to try to unclog the federal courts, but they became a justice-system hair ball of their own. As of early this year, there were a hundred and fifty-seven active M.D.L. dockets. Most of them are data breach, consumer privacy, and antitrust mass torts, with an average of around twelve hundred cases per docket. But the largest M.D.L.s are generally product-liability cases, and advocates for mass torts argue that, in the absence of a stronger regulatory system, this kind of litigation is the only way consumers can hold accountable corporations that put short-term profits above long-term safety. Twenty-seven thousand patients sued the pharmaceutical company Merck claiming that the painkiller Vioxx caused their strokes and heart attacks. (Merck settled for some five billion dollars, but denied liability.) Three thousand new plaintiffs have filed lawsuits alleging that GLP-1 drugs, such as Ozempic and Wegovy, caused their gastrointestinal issues or blindness. (The makers of these drugs maintain that they’re safe and effective.)

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.

A law firm essentially in name only, Alpha Law was the successor entity of a firm called Sigma Law, but effectively it was a series of call centers, including Law Firm Headquarters L.L.C., which was opened by a dot-com entrepreneur after he got out of prison for running a rogue online pharmacy and a puppy mill. Under the umbrella of Alpha Law, one set of overseas callers took advantage of electronic medical records, identifying potential leads by treatment codes, then cold-calling women and trying to convince them that their privacy had not been violated, sometimes telling them that they’d submitted an online form or survey somewhere. Another set of telemarketers, in an office building in Fort Lauderdale, waited for those calls to be transferred once the foreign operators confirmed that the women were qualifying plaintiffs without legal representation. Then a third set of operators, in the same office building, persuaded the women to sign letters of protection, liens against any future settlement, to cover the cost of their surgeries and travel with lenders like Surgical Assistance, Inc., at places like Women’s Health & Surgery Center L.L.C. Burch provides examples of the oleaginous questions these callers asked vulnerable women after they had been scared with medical horror stories: “Would you like me to help you get to a doctor that can help you?” “Do you have a few minutes so I can get some information to best tell you how we can help you get to the right doctor for your case?” (Alpha Law and its related operations are now defunct, and never admitted liability.)

If you have ever clicked through user agreements without reading them or used Docusign to endorse a form you didn’t fully understand, then you can appreciate how this happened to the fourteen thousand women caught in the mesh scam. Women with graduate degrees, like Shannon Gore, didn’t realize that they were forfeiting the right to use their health insurance for their surgeries. Others, like Barbara Shepard, had no idea that they were being overcharged for travel and medical care that they almost certainly could have received closer to home and from more qualified surgeons. Most, especially the most desperate, like Jerri Plummer, did not notice the provisions about double-digit interest rates on their settlement liens, or, if they did, couldn’t afford to object. Many women missed the arbitration clauses that sought to prevent them from challenging any fees or from suing those taking advantage of their pain. The lawyers involved were numerous, a litany of co-counsels structured out of need and greed as the legal-services market passed their cases between firms: Alpha Law eventually sold these women’s cases to the Houston-based firm AkinMears for forty million dollars. Burch describes how it borrowed funds to buy Alpha’s cases, relying on litigation-finance firms, reportedly agreeing to a twenty-four-per-cent interest rate and betting it would still earn more than a hundred and thirty million dollars.

Eight years ago, when Burch started surveying plaintiffs whose personal-injury cases had been consolidated into these large lawsuits, even she was surprised by just how dissatisfied the vast majority were—with their lawyers, with the unreasonable fees associated with their litigation, and with the lack of information about their case as it moved through the courts, usually taking four years or more. Around half of the plaintiffs that Burch surveyed could not even name the attorney representing them; less than two per cent felt their lawsuit accomplished what they had hoped it would.

With more than two decades of research into M.D.L.s, Burch has plenty of ideas about how to improve complex litigation. Some of her simplest solutions involve transparency: creating accessible websites to differentiate official court information from all the phishing and predatory search results of client-seeking firms and marketers; live-streaming hearings, depositions, and bellwether trials so plaintiffs anywhere can follow their cases; public disclosures for settlement allocation so legal fees and settlement amounts are known to all parties; and better lawyer-client communication so that clients hear from their actual attorneys throughout the process. She also argues for better conflict-of-interest screening for lawyers, judges, and magistrates, since there are so many repeat players in the world of complex litigation.

But sometimes a rookie makes a play, too. One of the few heroes in “The Pain Brokers” is J.R.Baxter, a young lawyer from Arkansas who ends up representing Jerri Plummer when she sues the L.L.C.s that targeted her and convinced her to have surgery that she almost certainly didn’t need, which made her incontinence worse than ever and left her dependent on diapers. Baxter grew up in the same town as Plummer and was fresh out of the University of Arkansas School of Law when Plummer called his father to ask if the family’s firm could help with her lawsuit. It took five years, but the Baxters got Plummer her day in court, where she was awarded two-and-a-half million dollars. J.R. went on to represent Shannon Gore and Barbara Shepard and a hundred and eighty other women who were victims of the mesh scam, too. (Some of those lawsuits are still pending.) As plainspoken as Burch, he sounds less like Clarence Darrow than Ben Matlock when he tells her, “This is such a stupid process.”

Yet process is all these women have, and Baxter is one of the first professionals to treat them not like “cash machines” but like real people with real stories, who were failed first by a regulatory system that did not protect them from a defective device, then dismissed by their own doctors and thereby left vulnerable to anyone promising a cure to their pain, and finally recruited and abandoned in the midst of litigation so complex that even lawyers have a hard time following it. Burch’s book cannot make this right, but it at least provides an account far more accessible and comprehensible than any case record, and no less appalling.♦

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