Who are you talking to on Facebook support groups?
This past week the weather here in Texas means I have not been able to pass some information along to women. However, I did manage a couple of quick blogs about the two States that are now suing Johnson & Johnson and I hope more will follow. But this time I want to share what can happen when you post on support groups on Facebook, either OPEN or Closed and/or you have surgery without cost, against your case.
ON May 21st I shared a blog about how AMS is working hard to throw out women’s cases. Although it takes only one case to be proved, it may mean many injured women will have their cases thrown out, even though they are damaged and sick. You can read that blog now before you read this one in case you missed it. http://www.meshangels.com/ams-lawsuit-loans/
I realize that there are still many women who do not know the connection Jane Akre has with any of this, but because she takes money from doctors to advertise WITHOUT fully understanding the consequences of what this will do to women, or probably does not care about that because she makes plenty of money from doing it, it however can backfire on injured women. By taking advertisements from unscrupulous doctors, it may mean women’s cases could be jeopardized because of her greed.
First I am going to share with you a conversation between women on a support group. Remember that most women have never met one another and do not know if the woman she is talking to is truly a mesh injured person. With so much information out there anyone can pose and draw you to a doctor or to a lawyer, whether they are injured or not. This conversation did both, and it happened only a week ago. This is why I am going to give you ALL the information I have found about Dr. Christopher Walker. The conversation begins by a woman named Allison.
Allison “Good morning ladies. Tomorrow we leave for Orlando, Thursday consult and Friday mesh removal. I am beyond nervous! Yet happy to begin this rd to recovery but all the “what if’s” are really scary. During and after surgery. I’m always on this site reading your stories, happy and sad ones. Is it just me.. I can read 100 great after story mesh removals and I bad, with enormous pain and so on and that one will stick w me. (I know everyone is different but…ugh.
At first glance this could be a mesh injured woman and yet again it could be a plant to steer women to a certain doctor, or lawyer or even both. Now read what another woman came back with very quickly. Her name is Fran.
Fran. “I do too! We all hope to be a success story and feel really sad for the ones that don’t get that. Are you seeing Dr. Walker, if so does he do full removal? When I called it was all cash. Doesn’t take ins. (insurance) Good luck to you.
Another woman answered and she sounds genuine. As you read all the information in this blog, you will learn what she said is VERY important because there is some underhanded stuff going on.
Desiree. “Yes he does, I just had mine done and my insurance covered it completely”
Allison, the first woman came back with the following and this is where things get just a bit dodgy and it made me suspect that Allison may or may not be a mesh injured woman or she could even be a plant.
Allison once again. “Yes Dr Walker. When you call ask to speak to the mesh department. Yes there is a whole other side to that: the first surgery, mesh removal. Only first one goes through financial company. It’s paid back into settlement. No matter where you are coming from they pay your gas or airfare, tolls, hotel stay and meds after surgery if no insurance. If you don’t win case u owe nothing. It’s in my contract. Whole process took 1 ½ month. This next bit is really dodgy. My lawyer told me about this doctor. I’ve been all over Florida with no luck. Yes he can do full removals but with certain cases may just be a partial due to risks. This next bit REALLY bothers me.
Rest of my surgeries will be under insurance. Why not do ALL surgeries with insurance? Was this aimed at women who don’t have insurance? Now read on. Only reason first one isn’t… well it’s a long story. They will explain to you. So far this process has been great! Doctor even called me before I’ve ever been there bc I’m so scared.”
Fran is very smart. Now read what she said in return to Allison’s comment.
Fran. “Good luck to you- I was told to call Law Cash but that’s a high % loan and can really get you in trouble. Wish he took ins because I live in Florida”
Allison’s answer to her really made me mad, because these loans will take everything from your case and I am going to prove to you what is going on. Either Allison is a plant or a stupidly ignorant woman. It could go either way. Now read her answer.
“No you don’t call. And yes it’s Law Cash. You have to go through a process like sending your op reports to them and so on. The next bit is where I highly suspected this woman’s conversation and really got a feel that she is probably a plant. My loan is not high and what is paid back isn’t much on top. I could care less what I get back from settlement, just want to be fixed.
So what did Fran say? Read this.
“I understand that! I just worried about the high % and how long some girls settlement takes, so was just worried about how that would work. I may call again and get more info-thanks.”
Once again Allison is pushing back about her lawsuit loan with the following statement and she seems to know more than she is letting on.
“Also when you think about it… if you are in an MDL which you probably are, settlements are nothing but a slap in the face. Its not a lot. Only if your lawer takes it to trial are the payouts higher and to me I already expect nothing from the settlement. Remember the old rule “If it sounds too good to be true, it is” Alliuson continued with. Just taking advantage of someone helping me. Ya know.”
She then continued on to try to dangle more information which to me says she is highly
suspicious. Now read what else Allison came back with later after her consult.
“I have soylx sling mid-urethral. Saw Dr. Walker today for consult. He said he could remove all of it due to extensive never (nerve I am sure) but it would be way worse. It’s 3 pm tomorrow. I’m so scared! He’s giving me a block after/during general anestesia, said it would last 3 days. Did he do this for you?? How long ago did he remove your mesh? Wonder why he could remove all yours but right off the bat he said he couldn’t do all mine….”
So is she legitimate? Was her mesh removed at all? She really didn’t say for sure. She then added “Dr. Walker’s office Orange Ave”
Then this is what Desiree replied.
“He didn’t say he could remove mine completely until he got there. No one can makes guarantees. Maybe he knew because of type of sling you had. I was in his office today 3.30 for another swab. I hope everything went well sweatheart. If need confirms complete removal and anchors. It is very important to have anchors os solyx removed. I say that because I also had a Solyx sling and anchors hurt me.” Smart woman and she is right. Removing the anchors is very important but the wrong doctor can screw you up for life and actually cause you to bleed to death.
Now all of this you have just read, is both highly confusing and suspicious at best. But it didn’t stop there.
Then a new woman by the name of Steph then asked.
” Allison do you mind sharing your attourney’s name me? I’m still searching for one. You can PM me if you want. I have AMS but also Colaplast mesh and it’s been nothing but Hell since. Best of luck on your surgery”.
To my surprise this is what Allison then replied.
“He’s in Orlando Florida. Kevin Butler as co-counsel. main is Morgan & Morgan. Kevin is even coming tomorrow to sit with my boyfriend while I’m in surgery. He’s the greatest.”
The fact that she states a lawyer is going to sit with her boyfriend makes me suspect that even if she is mesh injured, she may be working for either the lawyer, the loan company or both. It could be very lucrative if you are receiving kickbacks and I believe this is happening on many support groups.
Now I am not saying she is doing anything wrong for sure, but I want you to know that when you post something like this on ANY support group, you will raise red flags to anyone in the group who is undercover for a mesh manufacturer and they will begin digging deep and before you know it you will be under suspicion and will be contacted by their lawyers. If you think this is all bullshit, you can read on and learn that I am telling the truth because it already happened to other women.
I could close my eyes to all the crap I read, but I am writing to warn women of the danger of what they put themselves in and other women. So I cannot close my eyes and not share this.
So why is this blog very important? You should know that whatever you post on a support group could be used against you and your case could be gone in a moment. I am also highly concerned about the future of women who take these loans because although Allison said the percentage of her loan is low, she is wrong. It may seem like the easiest thing to do at the time, but will it get you even more complications for your life?
I tried to find out how the loan companies are going to make their money back if you do not get enough from your case or refuse to accept a low amount, but all I found is that this is such a new way for these awful people to make money and as yet, it is not regulated. So no one seems to know what will happen and these tort cases will be the first to show what lawsuit lenders will do to women after the fact. So even though you are told if you don’t win your case you do not owe them anything, as yet I cannot find an answer as to my questions, “what if you win and yur final payout is far less than the amount you borrowed” and “can they go after you by placing liens on anything and everything you own”. I believe this WILL happen and here is why.
Law Cash is not doing this because they think you are a wonderfu woman who is injured and needs someone to foot the bill without paying it back. They are one of many opportunist companies who have discovered a way to rip off people when they are injured. Believe me they have a way to get it back, so don’t put your head in the sand and think there are no consequences to your actions.
The other thing that really concerned me was that any lawyer is sending women to a particular law suit lender. What are they getting out of it? Jane Akre openly advertises lawyers and she had now openly said she welcomed a law marketing firm to her website. Are they involved in this?
I had already been told that Dr. Christopher Walker is a red flag to the manufacturers and I am now giving you links to everything Jane Akre has written about him at the bottom of this blog. You should be aware that when a doctor pays her her outrageus advertising rate, she will write postive things about them. Walker has also been on Drug Watch in the past, which is another site just like Akres, but without all the injured women reading it. So I am sure he has done well from it.
A long time ago, Drugwatch wanted me to do my story and I refused. However many others have done this including the Sawyers, David and Teresa who once owned a non profit called TVT-No and that went down because they were also unscrupulous in what they did with the money they took in. You can learn everything if you want to by going to stopmesh.com and putting anyone’s name in the search engine. Any of these people I mention will come up with proof of all they have or are now doing.
After I read these women’s conversation, I began to research to find out more about Dr. Christopher Walker and I was quite shocked at what I read. By reading it, you why AMS is going after women, because women are the easiest to take down and save them money. So I downloaded the entire 27 pages and then edited them from legal double spaced format, so that it would not make this blog huge. It took me some time, but without reading what was said, you won’t know the truth, nor that three doctors are involved in this including Walker.
If you cannot take it all in at once, you will be able to read and reread any time without searching for this link. Believe me you will be shocked at what you read.
This was filed on May 12th 2016, just a couple of weeks ago.
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
IN RE: AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEMS PRODUCTS LIABILITY LITIGATION
AMS’S MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO QUASH SUBPOENAS ISSUED BY AMERICAN MEDICAL SYSTEMS, INC. AND FOR A PROTECTIVE ORDER
The recipients of the subpoenas at issue (“movants”), led by convicted felon Vincent Chhabra, are at the center of an illicit enterprise that targets and cold calls women who have received vaginal mesh implants, solicits those women (many of whom have limited education or health care options) to sue manufacturers regardless of whether the women have issues with their implants, pressures those women to obtain explant surgeries from out-of-state doctors at exorbitant prices regardless of medical necessity, creates high-interest loans secured by the women’s lawsuits to pay for the unnecessary procedures and associated expenses, and then waits for the cases to be settled to achieve a payoff.
At the Court’s urging, American Medical Systems, Inc. (and the current entity carrying on its mesh business, Astora Women’s Health, LLC, which are collectively referred to as “AMS”) has done its best to work out settlements for a substantial portion of the cases asserted against it. But that settlement process cannot be concluded unless and until AMS identifies the specific cases with meritless claims—or excessive damages claims—created by the movants. AMS is committed to working with the Court to resolve this mass tort, but AMS cannot and will not reward the movants’ scheme by paying
Case 2:12-md-02325 Document 2294 Filed 05/12/16 Page 1 of 27 PageID #: 22862 claims for medically unnecessary surgeries—or inflated claims based on artificially created costs. In seeking to avoid AMS’s discovery about their enterprise, the movants attempt to normalize their activities by claiming their call centers only receive calls from potential plaintiffs and they act only as a referral service. The evidence gathered to date by AMS tells a far different story, however. As explained below, mesh patients are being solicited by cold callers armed with confidential medical information who employ distortion, exaggeration, and outright untruth to pressure these women to sign retention letters. Once signed up, the cases are bundled and sent by the movants to other law firms, and the plaintiffs are funneled to faraway surgeons they’ve never met for revision surgeries their own doctors never recommended (and, in some cases, recommended against). The surgeons are paid inflated cash fees (and substantial “bonuses” for each explant) – up to ten times the norm – by “funding companies” that insist that the plaintiffs avoid using insurance and then place exorbitant liens on the plaintiffs’ recoveries.
By all appearances, a pyramid of businessmen, doctors and lawyers is orchestrating the exploitation of unsophisticated medical and legal consumers and seeking to perpetrate a fraud on AMS and the Court. And the moving parties are involved in every facet of this web. See Inside Massive Injury Lawsuits, Clients Get Traded Like Commodities for Big Money, Bloomberg Business, attached hereto as Exhibit 1.
The following paragraph is why these women’s conversations are so important. What you say on a support groups can be a game changer for all injured women. If there truly is wrong doing by any woman I believe she has to take responsibility for her action, but but the bad part is she hurts truly injured women.
As it evaluates and defends these lawsuits, AMS is entitled to understand plaintiffs’ true injuries and the genesis of their damages claims, including the decision to undergo explant surgery. As this Court acknowledged during a December 29, 2015 hearing, “It would be interesting to know if [the Plaintiffs] decided on their own that they needed an explant surgery, and if that’s the case, how that went from [ ] their decision to get an explant to them having an Case 2:12-md-02325 Document 2294 Filed 05/12/16 Page 2 of 27 PageID #: 22863vexplant because there certainly ought to be some analysis in between. And I think that AMS has the right to discover that.” See Transcript of Proceedings Before the Honorable Magistrate Judge Cheryl A. Eifert, Telephone Motions Hearing, Tuesday, December 29, 2015, 10:00 A.M., Huntington, West Virginia (“12/29/15 Hearing”), relevant portions of which are attached hereto as Exhibit 2, at 17:15-20.
It is this very information that AMS seeks in its third-party subpoenas, and, as this Court has held on previous occasions, its relevance is beyond question. Moreover, none of the information sought is privileged or attorney work product, as it relates to substantive claims and damages asserted against AMS and to the movants’ business activities, not legal advice. AMS understands that discovery requires a delicate balance between fact-gathering and the protections of the attorney-client privilege and the work product doctrine, but the information AMS seeks is vital and appropriately discoverable. Accordingly, the Motion to Quash and for a Protective Order should be denied. I have learned over the past few years what a dirty business filing a lawsuit can get and why every woman can become a target.
- FACTUAL BACKGROUND
A. The Movants’ “Business Plan” to Solicit Plaintiffs for Lawsuits, Convince Them to Agree to Unnecessary Surgeries, and Thereby Inflate Damages As this Court is aware, plaintiffs in this MDL claim that defective AMS mesh implants were used to treat their pelvic organ prolapse or stress urinary incontinence and caused them injury. AMS denies these allegations and maintains that its products are not defective and that the injuries plaintiffs claim are not medically caused by their implants. For hundreds of thousands of women, mesh implants have been effective and improved their quality of life In defending against the claims of certain plaintiffs, AMS has uncovered a major source of suspect claims. Individuals and companies owned by or associated with Vincent Chhabra,
They named three women who were upset by calls made to their homes. I have heard of this but it did not happen to me.
Case 2:12-md-02325 Document 2294 Filed 05/12/16 Page 3 of 27 PageID #: 22864 – 4 – who was convicted in 2004 of running an illegal online pharmacy1 and was then given additional prison time in 2009 for running an online puppy mill from prison 2 have been making at least two types of “cold calls” to women who have AMS mesh implants. In the first, women are pushed to file lawsuits against AMS, by callers – sometimes with accents that indicate they may be working overseas – who somehow know the most private details of the women’s lives (including the fact that the women have mesh implants), and who promise them legal representation and financial recovery if they agree to sue. Affidavits of three women who have received these calls – Sally Donelson, Pat Thomas, and Jennifer Goodsoe – are attached respectively as Exhibits 3, 4, and 5. Each of these women reported receiving an initial cold call asking for information about any problems she had experienced with her AMS implant. Each woman answered that she was satisfied with her implant and had no problems, yet each continued to receive more calls “pressuring” her to complain about her mesh procedure and to agree that she had complications. All three reported being upset by the calls and shaken by the fact that the callers knew private medical information to which they had no legal access.
The second category of calls – perhaps even more insidious – attempts to convince women to have their mesh implants removed – or “explanted” – whether or not their own doctors ever recommended such surgery. After months of investigation, including depositions of doctors, vaginal mesh plaintiffs, and employees of medical funding companies and surgery centers, it is clear that much of the recruitment and pressure to undergo explant surgery occurs before a patient ever consults a physician about such surgery.
In the typical scenario, a woman who has had her mesh implant for years with no history of complications is provided with frightening and inaccurate information about her implant and urged – without consulting her regular treating doctor or even against her doctor’s advice – to fly hundreds of miles from her home so a doctor she has met for the first time only the day of surgery (or sometimes the previous day) can perform major surgery on her. See, e.g. Deposition of Marjorie Elkins3, dated October 22, 2015 (“Elkins Dep.”), relevant portions of which are
This next bit throws Dr. Christopher Walker into the limelight and clearly says there are 3 doctors in this.. I truly feel bad for these women if they are totally innocent and have mesh complications. This is why YOUR choice of doctor should not be changed by anyone including other women. If you have tried locally and have not had success and are still very ill or in pain, go to someone who can remove it completely. But do this with freedon of will. Do NOT BE COERCED by anyone to change and go to someone who could be caught up in this or something else we do not know about. The lawyers for mesh manufacturers are watching…….
attached hereto as Exhibit 6, at 64:11-21; 68:18-69:6; Deposition of Florida Casias, dated October 19, 2015 (“Casias Dep.”), relevant portions of which are attached hereto as Exhibit 7, at 69:16-18; 76:22 – 77:3; 92:20 – 93:2; 112:4; Deposition of Julita Centola, dated October 20, 2015 (“Centola Dep.”), relevant portions of which are attached as Exhibit 8, at 52:1-9; 60:22 – 61:14; 63:14-18; Deposition of Judy Buzzell , dated January 25, 2016 (“Buzzell Dep.”), relevant portions of which are attached hereto as Exhibit 9, at 70:13 – 82:14. Even when a woman expresses a preference for a local doctor, she is assigned to one of the doctors who work with the funders. See, e.g., Exhibit 10, (fax from plaintiff Pauline Greenier to Surgical Assistance four months before she saw a physician, noting, “Would like to use this doctor” and naming a local Pennsylvania doctor. However, Dr. Christopher Walker performed the surgery in Florida four months later.) Part of the “pitch” to these women is the false assertion that there are no doctors to perform their explant surgeries locally and that they must travel to doctors affiliated with the movants. See Exhibit 11 (medical record from plaintiff Teri Elliott one month after her Florida explant, reporting to her regular doctor that she was told before surgery that “there are only three doctors in the country who remove the slings”).
Now this next bit confirms what Allison said but she put other women’s cases in danger by writing on a support group. There is more to this story and criminals are behind it.
Before any patient meets with a doctor, however, she has had multiple conversations with representatives from organizations run by the movants.4 For example, PRGI (which apparently is an acronym for “Perpetual Revenue Growth International”), an organization with call centers based in India whose registered agent and corporate officer is Vincent Chhabra, is involved in 1) assigning the plaintiff to a doctor; 2) making sure funding contracts are signed; and 3) obtaining authorizations from the new lawyers to whom the plaintiff’s claim has been “flipped.”5 See Florida Dept. of State Corporate Registration Information, Exhibit 13 (noting V. Chhabra ownership). See also PRGI Web Site Home Page, Exhibit 14 (explaining purpose of “Perpetual Revenue Group International”); Call Center Job Listing (Exhibit 15) (advertising opening for PRGI, Inc. Call Center Manager in Bengluru, India).
Women were told that only 3 doctors in the country could remove their mesh. So which the other two doctors they are they going after?
All of the complicit doctors who have been deposed to date – Dr. Pescatore, Dr. Hulse, and Dr. Walker – testified that they met each plaintiff for the first time on the day of surgery (or sometimes the day before). Deposition of Earle M. Pescatore, M.D., dated December 5, 2015 (Pescatore Dep.”), Exhibit 16, at 73:12-25; Deposition of Michael Hulse, M.D., dated February 26, 2016 (“Hulse Dep.”), Exhibit 17, at 97:15-18, 99:11-15; 101:2-21; Deposition of Christopher Walker, M.D., dated May 3, 2016 (“Walker Dep.”), Exhibit 18, at 70:5-11.
Now please note what women are told about the insurance.
Although the women generally have health insurance (and often initially request to use it), at some point they are told by a call center that they cannot use insurance to pay for their explant surgeries. See, e.g. Elkins ep. (Ex. 6) at 62:17-21; 63:25 – 64:10; 76:19-21; Casias Dep. (Ex. 7) at 67:15-20; Buzzell Dep. (Ex. 9) at 157:5 – 158:24.
You may wonder why these doctors do this. It is because they are paid huge sums of money. Even though these doctors received all this money, they are going after the women.
Moreover, each participating doctor admits receiving payments and “bonuses” for performing surgery on women being referred to them by movants that are many times the going rate for such surgeries. Pescatore Dep., Ex. 15, at 23:724:5 (verbal contract with Tampa Women’s Clinic provided that he received a $1,000/day salary and a bonus for each surgery he performed, totaling $3,500 – $4,000 per case); Hulse Dep., Ex. 16, at 77:23-78:16 (admitting that he is paid significantly more for a “funded” case than for an insurance case); Walker Dep., Ex. 17, at 37:17-38:1, 98:24-100:18 (testifying that he receives between $3,500 and $4,000 per “funded” explant versus approximately $500 for performing the same procedure on an insured patient in his regular practice).
Note that physician fees are regulated by the Government, however these crooks are inflating their costs to become millionaires. If this happened to you, you should find a lawyer to take your case to Civil court.
The women are then required to “fund” these expensive surgeries, and the accompanying interstate travel, through “loans” or other complex financial arrangements involving various “middlemen” and other non-medical personnel. In the case of plaintiff Elkins, for example, she was induced to take out a “loan” for $21,000 to cover her surgery and related costs, see Elkins Dep. (Ex. 6) at 61– 67; 79 – 82, even though the cost of such surgery in her home state (if it had in fact been needed) would have been a small fraction of that amount. See Physician Fee Schedule Search for HCPCS Code 5287 (Revise/remove sling repair), (“Medicare/Medicaid Physician Fee Schedule”), Centers for Medicare & Medicaid Services (2016), https://www.cms.gov/apps/physician-fee schedule/search/search-results.aspx?Y=0&T=0&HT=0&CT=3&H1=57287&M=1, attached hereto as Exhibit x (showing cost range of mesh revision surgery to be between $589.35 – $993.33).
So now you know why women are the targets and why this can damage ALL injured women’s cases.
In its third-party subpoenas, AMS seeks to shed light on this two-stage effort to induce essentially uninjured plaintiffs to sue and to inflate the plaintiffs’ damages claims with unnecessary and overpriced explant surgeries. These activities not only exploit the women involved, but also harm AMS by generating meritless injury claims and inflating asserted damages.6
B. The Movants’ Involvement in the Scheme to Solicit Women to Sue AMS and Inflate Damages
This will tell you how crooked and evasive this can get. Note the woman was told these doctors were in a ‘pool of some sort’ and they knew every detail of your personal records such as Social Security number. Who are they buying them from?
1. The Movants Operate “Call Centers” That Solicit Women to File Lawsuits and to Undergo Explant Surgeries In her deposition, plaintiff Judy Buzzell testified that she received two series of cold calls from two different “call centers,” both related to her AMS mesh implant. The first two calls warned her that her mesh implant was being recalled (it wasn’t) and that she needed to travel to Florida to have it removed. Buzzell Dep. (Ex. 9), at 70:11-71:1. The caller knew plaintiff Buzzell’s date of birth, Social Security number, and the date of her implant surgery, id. at 78:715, offered to fly her to Florida for explant surgery, and promised to help finance the trip if she could not afford it. Id. at 79:8-14. When Ms. Buzzell asked the name of the doctor who would perform the surgery, she was told that doctors were “in a pool of some sort.” Id. at 81:21. Before agreeing, Ms. Buzzell consulted her local obstetrician/gynecologist. The doctor examined Ms. Buzzell and found no evidence of pelvic pain, tenderness or extrusion, found the AMS mesh sling intact and in its normal position, and counseled Ms. Buzzell that she did not need to have the device removed. See generally, e.g. Deposition of [Treating Physician]7, dated April 1, 2016. relevant portions of which are attached hereto as Exhibit 21, at 110:1 – 124:8.
I know for a fact that women who have complications are often told by their doctor that is has nothing to do with the mesh. This is why I always tell women that if you have complications and no one believes you, go to UCLA for consult and take your records. They will NOT remove it unless it is needed but they will listen to women and view all the records as well as run several tests BEFORE they do removal surgery. Those tests will prove there is a definite problem or there isn’t. They do NOT participate in any crooked scheme to bilk women out of funds.
Yet, contrary to the advice of her regular doctor, plaintiff Buzzell, a resident of Maine, traveled to Georgia for explant surgery by Dr. Michael Hulse, who was paid almost $10,000 in cash for the procedure. To pay for this, Ms. Buzzell incurred a $21,000 lien at 39% interest compounding monthly. So Allison. Exactly what does your contract say?
See Judy Buzzell LawCash contract at LawCash 000090, attached hereto as Exhibit 22. The third call – from a caller who told her that his organization was “working together” with the prior callers – came from someone at the Sigma Law Firm, one of the law firm movants Is your lawyer from the Sigma law firm? Read more.
subpoenaed by AMS, soliciting Plaintiff Buzzell to file a mesh lawsuit. Buzzell Dep. (Ex. 9) at 85:21 – 87:5. Movant Michael Chhabra is a non-attorney partner in Sigma Law Firm (as well as subpoena recipients Alpha, MV, and Pegasus). Movants’ br., at 3.8 See also (Redacted) Letter to Plaintiff Buzzell from Sigma Law Firm,
Exhibit 23; Smart Sheet entry for Plaintiff Buzzell, Exhibit 24, stating that the Law Offices of Albert Lazo represents her. Remember this one. Law offices of Albert Lazo
Plaintiff Marjorie Elkins also received an unsolicited call offering “medical attention” to “correct problems” related to her mesh implant. The call came from the Law Firm Headquarters.
See Marjorie Elkins Questionnaire, Exhibit 25.9 The movants state that the Law Firm Headquarters is not a law firm but “has provided traditional legal support services to the Law Firms separately, as the agent of each.” Movant’s br. at 3. Note this; Non-attorney Michael Chhabra is the Chief Operating Officer of The Law Firm Headquarters. Id. (I posted this when Reuters did their story) In fact, in an interview with Reuters, Chhabra conceded that The Law Firm Headquarters “purchases leads from offshore call centers.”
This is a crooked ring with many factions.
See Medical Device Defendant Probes Origin of Mesh Claims, Reuters, March 10, 2016, attached as Exhibit x. What’s more, Chhabra admitted that some former call centers “used improper tactics such as asking prospective clients to wire them money or urging potential plaintiffs to sue.” Id. According to Chhabra, some of these call centers were “trying to cheat clients.” Id. AMS believes that Michael Chhabra and his father, Vincent Chhabra, operate these offshore call centers. What is undeniable is that call centers related to Chhabra-owned and operated companies, armed with personal information and spouting frightening untruths, have called women with AMS mesh implants, have solicited them to sue, and have convinced them to undergo surgeries that no one has recommended and that are performed by strangers.10 Beyond doubt, as this Court has previously held, the details of these calls are relevant to AMS’s defenses and its evaluation of cases.
Money, money, money is the root of all evil.
2. The Movants Are Involved with Funding Questionable Explant Surgeries for Mesh Plaintiffs The movants’ involvement does not end with calls soliciting women to file suits and undergo mesh explant surgeries. Instead, the movants and their companies are involved with the funders’ scheme to circumvent insurance and supply over-priced loans to “fund” inflated cash payments to selected explant surgeons. As the emails attached as Exhibit 12 illustrate, PRGI, its employee Amanda Lopez, LFHQ, Michael Chhabra, and Vincent Chhabra were at the center of coordinated activities among patients, funding companies, and medical providers. In one e-mail, attached separately as Exhibit 28, Andy Fisher of LawCash (a litigation funder) asks, “Amanda, this file was sent to me via the Women’s Health Center of South Florida and the case is currently in review. . . .
Please advise so we don’t have any issues with this one.” In another, Exhibit 29, Fisher e-mails Amanda and says, “Amanda, we are missing an attorney signature for Judy Buzzell. Since she lives in Maine, there is a second signature page required by the attorney. . . .” Finally, an e-mail attached separately as Exhibit 30 illustrates the rampant impropriety plaguing these funding transactions. In this e-mail, Dave Langevin, attorney for plaintiffs Elkins and Buzzell (and numerous other plaintiffs who have filed lawsuits against AMS), complains,
The train wreck began with Jane Akre advertising doctors who are crooked.
This has turned into a total and complete train wreck. I was told everyone was going to make every effort to have the patients/clients speak with me, Rhett, or any attorney here at our office before the patients/clients signed the lien and certainly before surgery. I have been told several time no more surgeries would occur until the paperwork is complete. Nothing has changed. In fact, things have worsened. Now I am expected to sign something stating I, as the person’s attorney, reviewed and explained the documents prior to client signing. How is this possible if I am not retained as the person’s attorney until ten days later? This is very frustrating and we are all wasting too much time on a problem with an extremely simple solution. Do not book flights, hotels, and surgeries until an attorney has signed the attorney acknowledgment.
This is not about one faction, it is about many people who are involved.
See Ex. 30. As this e-mail makes clear–and as the documentation being sought by the subpoenas is expected to further reveal—the true underlying interests driving the explant surgeries in question are not doctors’ opinions or medical necessity, but instead are the pecuniary business interests of doctors, lawyers, and litigation financiers. Not surprisingly, the movants are not the first participants in this scheme to resist discovery about their activities. This Court has already compelled other third parties to produce similar documents and to appear for depositions, and has denied all of the third parties’ motions to quash AMS’s subpoenas. As the Court succinctly put it at the December 29, 2009 hearing: “Given that surgery is one aspect of Plaintiffs’ alleged damages, AMS has the right to explore the circumstances surrounding the surgery, including related payment information…” December 29, 2015 Order Granting Defendant’s Motion to Compel Answers to Deposition Questions and Documents Requested, attached hereto as Exhibit 31; see also id. (noting that the “questions posed and the documents requested are directly relevant to the medical necessity and reasonableness of Plaintiffs’ mesh removal surgery”);
Time to be accountable and break down all charges.
Transcript of Proceedings Before the Honorable Magistrate Judge Cheryl Eifert, Telephone Motions Hearing, Tuesday, April 12, 2016, 1:30 P.M., Huntington, West Virginia (“4/12/16 Hearing”), relevant portions of which are attached hereto as Exhibit 32, at 13:25 – 14:23 (ordering Broward Medical to produce a breakdown of the $22,000 Broward received for Plaintiff B’s explant surgery, because “it is an element of her damages, and the defendant has a right to know whether these are reasonable charges. They have a right to know whether the surgery was medically necessary. They have a right [to] know how that decision was made.”).
As this Court also recognized at the December 29 hearing, discovery about the process of funding the surgeries at issue is also appropriate, as it has a significant impact on the calculation of damages and therefore AMS’s ability to fairly settle these cases. 12/29/15 Hearing, Exhibit 2, at 17:22-18:2. I do not agree with funding surgeries. If you are going to borrow money DO NOT DO IT AGAINST YOUR CASE.
In sum, as this Court has held in the past, AMS is entitled to explore the roles the movants played in creating and inflating plaintiffs’ damages claims. The third-parties’ subpoenas seek information that is clearly relevant to AMS’s defenses and to its evaluation of plaintiffs’ cases for possible settlement.
You cannot always hide behind attorney-client privileges. Lawyers will always find a case to hand to the court where this did not work.
II. THE MOVANTS HAVE NOT MET THEIR BURDEN OF PROVING THAT THE ATTORNEY-CLIENT PRIVILEGE OR THE WORK PRODUCT DOCTRINE SHIELDS THE DOCUMENTS AMS SEEKS The classic test for application of the attorney-client privilege was established in United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950). Under United Shoe, the privilege applies only when:
- the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
United Shoe, 89 F. Supp. at 358-59, as cited in United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). The proponent of the privilege bears the burden of proving that the privilege applies.
Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998), citing Jones, 696 F.2d at 1072. In this case, that means that the movants bear the burden of proving that their communications with mesh patients are privileged. Movants also bear the burden of showing applicability of the attorney work product doctrine. See, e.g., Solis v. Food Emp’rs Labor Relations Ass’n., 644 F.3d 221, 233 (4th Cir. 2011). They have not met these burdens here.
Yes these people are not law firms. Most are marketing firms and what they do can be illegal. So now you see why I doubted Akin Mears in a past blog. In my opinion, they seem to be questionable.
A. The “Law Firms” Are Law Firms in Name Only As an initial matter, the nominal “law firms” do not practice law in any traditional sense, and, based on the record here, none provided legal representation to any of the women or even entered an appearance on any woman’s behalf. Instead, as explained below, the “law firms” engaged in the decidedly non-legal activities of gathering leads and setting the wheels in motion for the surgeries that would “raise the value” of the cases, then bundled the cases and “flipped” them to other law firms, like Akin Mears.11 It is axiomatic that an “Esq.” after a name does not a privileged communication make.
Unless a communication relates to a client seeking legal advice and the attorney providing advice in response, the communication is not privileged. See, e.g., In re CFS-Related Securities Fraud is not protected by the privilege even though conveyed by an attorney to the client.”); In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 798 (E.D. La. 2007) (“The test for the application of the attorney-client privilege to communications with legal counsel in which a mixture of services are sought is whether counsel was participating in the communications primarily for the purpose of rendering legal advice or assistance.”); Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 147 (D. Del. 1977) (“Only if the attorney is ‘acting as a lawyer’ giving advice with respect to the legal implications of a proposed course of conduct may the privilege be properly invoked.” In this case, the record to date shows that none of the “law firms” was providing legal advice to any of the women, and the movants have not established otherwise.12 Notwithstanding their misnomers, the “law firms'” communications with the women are not protected by the attorney-client privilege.
B. The Questionnaires and Related Materials Responsive to Requests 1 and 2 Are Not Shielded by the Attorney-Client Privilege The movants argue that Requests 1 and 2, seeking questionnaires memorializing the movants’ communications with mesh patients and related materials, are “confidential communications with lawyers” shielded by the attorney-client privilege, “regardless of whether LFHQ provided phone support.” Movants’ br. at 12. In reality, the requested documents do not satisfy any of the elements of privileged communications.
1. Law Firm Headquarters, Inc. Is Not an “Agent” that Preserves the Attorney-Client Privilege The movants argue that communications between plaintiffs and LFHQ are privileged because, though LFHQ is not composed of lawyers, it “communicated with clients and prospective clients and retained the data in confidence on behalf of the Law Firms . . . .” Movants’ br. at 12.
It is true that, under certain circumstances, an agent communicating with a client on an attorney’s behalf is entitled to the protection of the attorney-client privilege. However, for the privilege to apply, the communication must be for the specific purpose of aiding a current client in obtaining legal advice. See, e.g., FTC v. GlaxoSmithKline, 294 F.3d 141, 148 (D.C. Cir. 2002) (consultants who were “integral members of the team assigned to deal with issues [that] … were completely intertwined with [the client’s] litigation and legal strategies” fell within the scope of the attorney-client privilege); Neighborhood Dev. Collaborative v. Murphy, 233 F.R.D. 436, 441 (D. Md. 2005) (stating that confidential communications between a client and its attorney, which were conducted through a third-party financial consultant for the purpose of obtaining legal advice, were protected).
In contrast, solicitation materials–like the questionnaires filled in by employees of Surgical Assistance on behalf of LFHQ—are not privileged unless the communications were between a prospective client and an attorney. See, e.g., Devries v. Morgan Stanley & Co. LLC, No. 12-81223-CIV, 2013 WL 3243370 (S.D. Fla. June 26, 2013). In Devries, the court considered whether solicitation responses from potential opt-in plaintiffs were protected by the attorney-client privilege. The court held: Based on the nature of the solicitations, it is possible that the responses by potential opt-in plaintiffs may come within the umbrella of the attorney-client privilege. . . . [But the] privilege is designed only to protect confidential communications between the attorney and client regarding the matter of representation. . . . If any one of these elements is missing—if the communication is not confidential [or] if it is not between the attorney and client (or prospective client) . . . , the communication at issue is not covered by the privilege.
Solicitation communications not done by lawyers.
Here, it is undisputed that the solicitation communications were conducted by non lawyers. They are not entitled to protection under the attorney-client privilege.
2. The “Cold Calls” to Mesh Patients and Patients’ Calls Seeking Referrals to a Doctor Would Not Be Privileged Even If Conducted by an Attorney
a. The Women Were Not “Seeking to Become Clients” Nor would the result change even if an attorney had been involved. In U.S. E.E.O.C. v. ABM Indus. Inc., 261 F.R.D. 503 (E.D. Cal. 2009), the court considered whether the EEOC’s questionnaires to potential claimants – employees of the defendant – were protected from discovery by the attorney-client privilege. One group of questionnaires was received from individuals whom the EEOC did not currently represent. Holding that responses to the questionnaires were not privileged, the court emphasized,
Communications between an attorney and its client are privileged only if the requisite relationship exists. Regarding the questionnaire responses received from persons other than those whom the EEOC currently represents, the EEOC has not demonstrated that the persons who filled out and returned the questionnaires were seeking to become EEOC clients at the time they completed the document. ABM, 261 F.R.D. at 513.
This is why you need to seek your own attorney, not go through anyone else.
The cases cited by the movants illustrate the same proposition: when the communication involves someone who demonstrates that she “seeks to become a client,” typically by initiating contact with an attorney, the resulting communications may be protected by the attorney-client privilege. In United States v. Gumbaytay, 276 F.R.D. 671, 679 (M.D. Ala. 2011), the communications held to be protected occurred when “callers contacted the [Central Alabama Fair Housing Corporation] to explore the possibility of raising Fair Housing Act claims.” In United States v. Bennett, No. CR609-067, 2010 WL 4313905 at *4 (S.D. Ga. Oct. 5, 2010), the communications occurred when the defendant met with a lawyer, in the lawyer’s office, and explained the details of a fraudulent mortgage transaction. Bauman v. Jacobs Suchard, Inc., 136 F.R.D. 460 (N.D. Ill. 1990), related to questionnaires completed and returned to the EEOC by prospective claimants seeking representation. In Barton v. Dist. Court, 410 F.3d 1104, 1112 (9th Cir. 2005), prospective clients completed and submitted a law firm’s online questionnaire. Even the Devries case discussed above, in which the judge was unable to make a privilege determination without seeing the documents at issue, involved potential opt-in claimants submitting questionnaires in their quest to become plaintiffs. Devries, 2013 WL 3243370.
Here, however, as in ABM, we are dealing with unsolicited communications – cold calls – whether by lawyers or not. Two of the four women got calls completely out of the blue.
Another plaintiff – Plaintiff Buzzell, who testified that she herself placed a call, was seeking a referral to a doctor, not for legal advice. The record before the Court demonstrates that these women were not clients and were not seeking to become clients; accordingly, these communications are not privileged. Compare Bauman v. Jacobs Suchard, 136 F.R.D. 460 (N.D. Ill. 1990) (fact that questionnaires were sent to individuals who had expressed an affirmative desire to be represented in EEOC action was critical to court’s finding that questionnaire was privileged).
You could become part of something that you did not wish to be involved in.
Furthermore, discovery to date suggests that the movant’s conduct implicates the so called “crime/fraud exception” to the attorney-client and work product privileges. Under the crime/fraud exception, privilege does not shield documents from disclosure when: “(1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme and (2) the documents containing [the privileged materials] … bear a close relationship to the client’s existing or future scheme to commit a crime or fraud.” Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999) citing In re Murphy, 560 F.2d 326, 338 (8th Cir. 1977). Moreover, courts have applied the exception to conduct that is not technically crime or fraud. See, e.g., Cleveland Hair Clinic, Inc. v. Puig, 968 F. Supp. 1227, 1241 (N.D. Ill. 1996) (exception applies to communications made in furtherance of “bad faith litigation conduct”); In re Sealed Case, 676 F.2d 793, 812 (D.C. Cir. 1982) (exception applies to “misconduct fundamentally inconsistent with the basic premises of the adversary system”).
Here, from all appearances, the movants are engaged in conduct that is defrauding women into having unnecessary surgeries, or defrauding AMS and the Court by presenting concocted claims and/or falsely inflated medical costs, or all of the above. If discovery reveals that movants have engaged in fraudulent conduct – or in other conduct outside of the bounds of ethics and good faith – AMS reserves the right to brief the applicability of the crime/fraud exception to any privilege that might otherwise shield the movants’ documents from discovery. b. The Women Did Not Have a “Reasonable Expectation” That Communications with the Call Center Would Be Confidential As was the case in ABM, there is another key element of a privileged communication missing here – the “reasonable expectation” that a communication will be kept confidential. ABM, 261 F.R.D. at 510 (“[The questionnaire] does not promise or intimate in any way that the information disclosed in completing the questionnaire would remain confidential.”); see also, e.g., In re Wolbert, No. 09-30765, 2010 WL 8971772, at *4 (Bankr. W.D.N.C. Feb. 17, 2010), citing United States v. White, 950 F.2d 426, 430 (7th Cir. 1991).
Movants assert that “of course” the solicitation calls to mesh patients were confidential, because the communications were not disclosed except to individuals who “furthered the rendition of legal services for the client.” Movants’ br. at 15. Even if this were an accurate description of the LFHQ callers (which, based on discovery to date, it is not), that is not the test.
As courts have held, the fact that the communications were not actually disclosed is not dispositive. What matters is whether the communications were made under circumstances giving rise to a reasonable expectation of confidentiality. See, e.g., In re Wilkerson, 393 B.R. 734 (Bankr. D. Colo. 2007). The case movants cite – United States v. (Under Seal), 748 F.2d 871 (4th Cir. 1984), emphasizes this distinction. As the Fourth Circuit held in that case: . . . [T]he privilege protects only confidential client communications; that is, communications not intended to be disclosed to third persons other than in the course of rendering legal services to the client or transmitting the communications by reasonably necessary means. We have recently said that the “essence” of the privilege is the protection of what was “expressly made confidential” or should have been “reasonably assume[d] … by the attorney as so intended.” In determining whether it was to be reasonably “assumed that confidentiality was intended”, it is the unquestioned rule that the mere relationship of attorney-client does not warrant a presumption of confidentiality. United States v. (Under Seal), 748 F.2d at 874-75.
Here, no reasonable expectation of confidentiality exists because the call centers made “cold calls” to women who had not reached out to hire a lawyer. Even if other indicia of privileged communications were present (which they are not), it would still be the movants’ burden to demonstrate that women receiving cold solicitation calls (or placing calls to call centers) believed that they were communicating in confidence. Obviously, the movants’ unsupported “of course” assertion fails to meet this burden.
See, e.g., United States v. Duke Energy Corp., No. 1:00CV1262, 2012 WL 1565228, at *12 (M.D.N.C. Apr. 30, 2012), citing Byrnes v. Jetnet Corp., 111 F.R.D. 68, 71 (M.D.N.C. 1986) (court could not determine whether attorney-client privilege existed because the proponent of the privilege had failed to establish “the necessary factual predicate,” emphasizing that “[i]t is incumbent upon the proponent [of the privilege] to specifically and factually support his claim of privilege. . . .”). c. The Facts in the Questionnaire Responses Are Not Privileged
Finally, even if the prior failings could be overcome, the attorney-client privilege still would not protect the factual statements in the questionnaires from discovery. As the ABM court explained:
Here it is. NOT ALL COMMUNICATIONS BETWEEN CLIENT AND ATTORNEY
Not all communications between attorney and client are privileged. . . . Privilege attaches only if the communications constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence. Here, the form of questionnaire is very short, less than two pages, it seeks identifying information (name, address, age, and telephone number); it asks for broad, general and limited information relevant to the recipient’s employment with ABM; and it seeks broad and general information about the claims pursued by the EEOC. . . . ABM, 261 F.R.D. at 510 (citations omitted). In this case, the LFHQ questionnaire occupies less than one page and records only basic facts about the call recipient and her mesh implant. Like the responses in ABM, this is not the sort of confidential information protected by the attorney client privilege.
C. The Work Product Doctrine Does Not Shield the Documents AMS Seeks The movants also argue that the work product doctrine shields documents responsive to Requests Nos. 1, 2, 3, 6, 7, 8 and 12-16 from disclosure. None of those documents is entitled to work product protection.
1. Call Center Questionnaires, and Women’s Responses to Them, Are Not Protected Work Product Though the movants list eleven requests that ostensibly seek protected work product, their arguments focus only on call center questionnaires and the women’s responses to them. Rule 26(b)(3) of the Federal Rules of Civil Procedure provides that, “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. . . .” Fed. R. Civ. P. 26(b)(3). To the movants, this means that AMS is not entitled to obtain LFHQ’s blank call center questionnaire forms or its completed questionnaires with women’s responses inserted. Courts have emphatically held otherwise.
In ABM, after holding that the attorney-client privilege did not apply, the court considered whether the EEOC’s blank questionnaire forms and the recipients’ responses to the questionnaires were protected attorney work product. The court held that, as an initial matter, “[t]he questionnaire was clearly prepared by the EEOC’s legal staff during the course of this litigation in order to pursue the interests it sought to vindicate by way of its lawsuit. As such, the [blank] questionnaire [form] itself is covered by the attorney work product doctrine.” ABM, 261 F.R.D. at 512. However, the court held that the EEOC waived protection for the questionnaire form when it disseminated to the form to the prospective claimants. Id. at 513. Here, notwithstanding the movants’ assertion that the questionnaires were “created by LFHQ call center agents and case managers under the direction and control of the Law Firms . . . ,” Movants’ br. at 17, the movants have not met their burden of proving that the non-lawyer LFHQ was acting under the “direction and control” of lawyers when it created the form of questionnaire.
Moreover, the LFHQ questionnaires were not created “for a party” or “in anticipation of litigation.” As explained above, LFHQ, and other entities operated by the movants, initiate “cold calls” to women whose personal information they have received. These women are not “clients” or “parties”; instead, they are the targets of unsought solicitation and high-pressure sales tactics.
The questionnaires are not prepared “in anticipation of litigation,” as there is no evidence that that any of the nominal “law firms” represents, or ever intended to represent, any of the women in mesh litigation. Instead, the information entered on the questionnaire facilitates the movants’ efforts to talk women into signing up for surgeries so the movants can maximize the prices they will be paid for “flipping” the women’s claims to firms that will actually represent them in litigation.13
Most importantly, even if the questionnaire form had been entitled to work product protection, that protection was waived. As courts have explained, “[b]ecause the work-product doctrine serves instead to protect an attorney’s work product from falling into the hands of an adversary, a disclosure to a third party does not necessarily waive the protection of the workproduct doctrine. Most courts hold that to waive the protection of the work-product doctrine, the disclosure must enable an adversary to gain access to the information.” United States v. Duke Energy Corp., 214 F.R.D. 383, 387 (M.D.N.C. 2003). In this case, the questionnaire form was disseminated to multiple participants in the scheme with no reasonable expectation that it would never be disclosed. As a result, AMS “gained access to” plaintiff Marjorie Elkins’s LFHQ questionnaire in a production from the owner of the entity who scheduled her surgery, Mr. Bhojani. Because the questionnaire form is already disclosed and known to AMS, it cannot be entitled to work product protection.
Even if the form itself had not already been produced, the work product doctrine would not protect the women’s responses. As the ABM court explained: “Nor would the questionnaire responses from this group of persons be protected by the work product doctrine. Having waived the protection with respect to the form of questionnaire, their responses are essentially verbatim witness statements made by third parties. As such, those responses are not protected by the work product doctrine.” Similarly here, the information recorded on the questionnaire forms is purely factual and is not shielded by the work product doctrine. Accord Agee v. Wayne Farms, L.L.C., No. 2:06CV268KS-MTP, 2007 WL 2903208, at *2 (S.D. Miss. Oct. 1, 2007) (“In addition, as for the answers to the questions, these are clearly facts which are not themselves protected by the work product doctrine.”) citing Gates v. Rohm & Haas Co., No. 06-1743, 2006 WL 3420591, at *5 (E.D. Pa. Nov. 22, 2006) (“the purely factual information contained on the completed questionnaires is not protected [by work product]”) (additional citations omitted).
In sum, the LFHQ questionnaires and the women’s responses to them do not satisfy the elements of Rule 26(b)(3), and the work product doctrine does not shield them from discovery.14
2. Even if Any of the Requested Documents Constitutes Fact Work Product, AMS Has Demonstrated Substantial Need for Those Documents As the movants state, Rule 26 requires disclosure of fact work product when the requesting party can “show that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed R. Civ. P. 26(b)(3)(ii). Throughout this brief, AMS has explained that it must understand the details of the movants’ scheme to inflate women’s damages claims by funding assembly-line surgeries in order to defend against these lawsuits and to evaluate them for possible settlement. Movants’ supposed “work product” is nothing of the sort; however, even it were, this material is essential to AMS’s defenses and understanding of the movants’ scheme—information that AMS cannot obtain by any other means.
Specifically, Requests 1 through 3 seek documents that illuminate the movants’ efforts to choose, contact, and communicate with vaginal mesh patients, and Request No. 6 seeks the advertising and marketing materials the movants used in those efforts. As demonstrated above, the movants are in the business of contacting mesh patients, pressuring them to file lawsuits, and convincing them to sign “funding contracts” so doctors they’ve never met can remove their mesh implants. Documents responsive to Requests 1, 2, 3 and 6 will enable AMS to learn how the movants chose the women they solicited and what the callers said to induce women to travel hundreds of miles and incur exorbitant debt to undergo surgery they may never have needed. As noted above, this Court acknowledged, during the December 29, 2015 hearing, that AMS “has the right to discover” the answers to these questions. 12/29/15 Hearing (Ex. 2) at 17:15-20.
Similarly, AMS has a substantial need to obtain contracts involving the movants and relating to lead generation for mesh claims and the funding and financing of mesh explants, (Requests 7 and 8), as well as all communications the movants have had with doctors, funders, and facilitators regarding AMS mesh products, patients who were implanted with AMS mesh products, or ownership or interest in the proceeds from litigation brought against AMS (Requests 12-16). As AMS has explained, to discern whether the “funded” surgeries were medically necessary, or, conversely, whether they were performed to inflate plaintiffs’ damages, AMS needs a comprehensive understanding of the details and mechanics of what each plaintiff was told and where the money that supposedly was spent on her treatment went, including who is involved, how the surgery costs are determined, who is profiting from these surgeries, and the amount of that profit. AMS cannot obtain this information except from the documents it has requested.
Accordingly, even if this Court holds that documents responsive to Requests 1, 2, 3, 6, 7, 8, 12, 13, 14, 15 and 16 contain fact work product, AMS has demonstrated that it has a substantial need for the information these documents contain and has no other means to obtain this information.
In sum, the movants have failed to meet their burden of proving that, as a general matter, the attorney-client privilege or the work product doctrine shields the documents requested by AMS’s subpoenas. If, for any specific document, the movants can meet their burden of proving that any privilege applies, they are free to make those arguments to this Court.
III. IF THE COURT HAS CONCERNS ABOUT THE SCOPE OF THE SUBPOENAS, AMS CAN NARROW ITS REQUESTS Throughout their brief, the movants argue that AMS’s requests are overbroad because they are not limited to documents related to AMS mesh plaintiffs. The movants assert, “Were the Court to entertain permitting AMS’s demands, that conclusion should follow only if the Court limits AMS’s request to documents concerning specific patients in this MDL for whom AMS can provide a valid proffer of relevance . . . .” Movants’ br., at 11.
In meet and confer conversations, AMS told the movants that it was certainly willing to confirm that its subpoenas were limited to documents concerning AMS plaintiffs only. AMS also suggested that the movants offer suggestions to make the requests more manageable for them. The movants, however, chose not to offer any suggestions and instead apparently ignored those conversations. In order to resolve this motion, AMS is prepared to provide the movants with a list of 100 plaintiffs with cases pending in AMS’s mesh MDL and will accept, at least for now, production of documents (including recordings of call center conversations) related only to these 100 plaintiffs.
As this Court has repeatedly concluded, AMS is entitled to understand why its mesh plaintiffs are traveling hundreds of miles and foregoing their health insurance so doctors they’ve never met can perform surgeries they may not need. AMS has taken discovery of funding sources, surgeons, and plaintiffs, and but needs to fill in the missing pieces of the puzzle – to learn what happens “one level down” in the process. The movants are involved in every phase of the effort to solicit these plaintiffs and to convince them to undergo “funded” mesh explant surgeries. The requested documents are unquestionably relevant to AMS’s ability to evaluate these cases and defend against them, and no valid privilege protects the documents from disclosure. The Motion to Quash and for Protective Order should be denied.
/s/ Erik W. Legg, Esq. Michael J. Farrell, Esquire (WVSB # 1168) Erik W. Legg, Esquire (WVSB # 7738) FARRELL, WHITE & LEGG PLLC 914 Fifth Avenue Huntington, West Virginia 25701 (304) 522-9100 email@example.com firstname.lastname@example.org
/s/ Rachel B. Weil, Esq. Barbara R. Binis, Esquire (PA Bar # 62359) Michael T. Scott, Esquire (PA Bar # 23882) Rachel B. Weil, Esquire (PA Bar # 49844) REED SMITH LLP Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia, Pennsylvania 19103 (215) 851-8100 email@example.com firstname.lastname@example.org
Dated: May 12, 2016
So what happened about the subpoenas? They were denied……
This is Dr. Christopher Walkers. Note he loves videos of women praising him.
801 N Orange Ave Ste 710 Orlando, FL 32801
This is Dr. Earle Pescatore.
2021 E Commercial Blvd Ste 305 Fort Lauderdale, FL 33308
433 Highland Pkwy # 203 East Ellijay, GA 30540
These are articles written for Drug watch and By Jane Akre.
Jane Akre wrote this June 8th 2015. http://www.meshmedicaldevicenewsdesk.com/urogynecologist-dr-walker-talks-mesh-removals-and-worst-offenders/
She also wrote this on August 19th 2015 http://www.meshmedicaldevicenewsdesk.com/dr-walker-answers-your-questions-about-pelvic-mesh/