Multi-District Litigation and Paragard Updates

By Susan Barfield
August 4, 2022

Susan Barfield (00:05):
Thank you for joining another Case Works stream. Super excited today to have Erin Copeland. Erin is with the Fibich, Leebron, Copeland & Briggs firm out of Houston. And we are going to talk all things MDL, leadership committees, and Paragard. So, Erin, thank you again for taking time to connect with us and give us some insight on what’s going on with Paragard. And I just get a lot of questions from attorneys as it relates to these different leadership committees. And so some of the questions that we’re going to go through, I think people will be real interested to understand how do the MDLs get formed. I mean, super basic questions, but how do MDLs get informed and… Or how do they get formed? And then about the leadership committees, what are their roles and how do attorneys apply and get on the different committees and kind of what their focus is on? So, why don’t we just start off a little bit and if you’ll just kind of give us your background and tell us a little bit about how you got into mass torts.

Erin Copeland (01:06):
Sure. Thank you for having me. Okay. So, I’ve been a practicing attorney since 2000 and I actually started working with my firm, the Fibich firm, even while I was in law school. So, this is essentially the only thing I’ve ever known. And prior to that, I worked for another plaintiff’s attorney mass tort firm while I was in law school as a law student as well. So, this is it for me. This is all I’ve known. I’ve worked for personal injury attorneys my whole career until becoming a partner myself.

Susan Barfield (01:40):
Yeah. That’s awesome. And tell us a little bit, I was reading about your background, and I know you’re really passionate about advocating for women and children against dangerous products. Maybe tell us a little bit about that and kind of what that stemmed from.

Erin Copeland (01:56):
Sure. Okay, as I said, I’ve kind of always done the personal injury side. I’ve always worked on the plaintiff’s side, never had any experience working on the other side and never really had any interest in doing that. And when I first started, I did single event cases. So, I’ve worked up a case from soup to nuts and had an occasion to represent some women individually in claims, big claims, product claims and also one of the most devastating cases that I had involved a child who was killed as a result of a dangerous product. And we pursued that particular case. So, there’s certainly… That’s where the interest was born. And then you see the impact that products and dangerous drugs have on masses of individuals. And so my experience in single event cases involving products and dangerous drugs kind of led to my experience and then transferring that into the mass scale because you’ve got certain products that do impact a lot more individuals than just one.

Erin Copeland (03:08):
And my first on-hand experience with mass tort would involve the transvaginal mesh. And that would be the first one that I worked on in a leadership capacity and really kind of getting into the history of the TVM products and how they came about. And quite frankly, my personal opinion, how little thought was given to the safety and efficacy of products that were intended for women. I personally observed, and it’s my personal opinion, that there were shortcuts made to get products to market with little to no consideration given to the ultimate impact on women. And my experience in TVM led to me getting a role in leadership and Essure, which was, for those viewers that don’t know, that was a permanent sterilization device, but a birth control device obviously intended for women that translated into my current role in Paragard, which is another birth control product.

Susan Barfield (04:17):
Yeah. And before we dive into Paragard, want to understand a little bit about how MDLs are formed and the differences in the roles that the plaintiff committees have, such as plaintiff steering committee and the leadership committee. Will you kind of touch on that?

Erin Copeland (04:35):
Sure. I’ll be happy to. So, it kind of what… As I mentioned before, in mass tort, you’re usually seeing a number of people, and it could quite frankly be just two. But a number of people that are impacted by a singular product or a singular drug or device, in my experience. And when you have multiple people across the nation who are being impacted by a singular product or a singular type of product, what could theoretically happen is all of these individuals will have cases, they’re spread out across the nation, and they may not end the same way. So, you may get different rulings, you may have cases that are very successful, and you may have cases that are kicked out of court.

Erin Copeland (05:24):
So, what you’re looking for essentially in an MDL is you’re looking for some sort of efficiency and consistency for all of the claimants who are similarly situated and suffering very similar injuries. So, an MDL, to answer your question directly, can be formed either by the JPML panel or a court kind of initiating that process itself, or one or both of the parties. But usually one of the parties asking the JPML to create an MDL so that all of the cases can get consolidated for purpose of pretrial workup so that it can preserve some consistency in rulings on those similar situated cases, but also create some efficiencies within the courthouses across the nation as well. So, that’s how MDLs generally get formed.

Susan Barfield (06:22):
And I know that you’ve served, as you mentioned, you’ve served on the executive committee for Essure, on the plaintiff steering committee, for trans vaginal mesh and Pradaxa. And most recently you were appointed co-lead for the MDL for Paragard. So, what are those different hats that you’re wearing? And what’s the focus?

Erin Copeland (06:44):
So, let me answer it a little bit by going back to how they actually get created, because they’re not always created in the same manner. It’s really up to the judge and the judge’s appetite for either allowing the plaintiff’s side to structure themselves. We all it very informally. We call them slates. Sometimes the plaintiff’s attorneys that represent the plaintiff’s across the nation, once they’re grouped into the MDL and consolidated into a single court, the plaintiff’s attorneys will align themselves and typically try to work out some sort of leadership structure amongst themselves. And sometimes, the court will sign off on that structure and allow it to go forward because the plaintiff’s attorneys have shown themselves to be able to cooperate and do it this way. Sometimes leadership committees are formed by virtue of the judge doing whatever he or she wants to do.

Erin Copeland (07:48):
She might hand select, she might do an interview process, she might look at everybody and appoint them, and then just kind of appoint whoever’s got the most cases. Who tends to be kind of leading the pack on behalf of the plaintiff’s attorneys already? So, that’s kind of how they get formed. And then to answer your question as to the structure, what you usually have is you usually have… I liken it to a pyramid. Usually have one or two or sometimes more co-leads, if you will. Like, the TVM litigation was a massive litigation and it involved multiple MDLs, consolidated, excuse me, consolidated into one court. But each of the different MDLs had a number of co-leads. But you’ll have your co-leads, and then you typically have an executive committee that’s kind of a higher level advisory committee to the co-leads and helping the co-leads kind of guide and lead the steering committee that’s working underneath it. And I personally liken the steering committee to kind of be the soldiers, the ones who are really kind of out in the field, facilitating the assignments and the projects that are kind of spearheaded by those at the apex, if you will.

Susan Barfield (09:13):
Okay. Yeah, no, that’s super helpful. That makes a lot of sense. I appreciate you taking time to share. Let’s talk a little bit about Paragard. You mentioned a little bit, but how did you get involved with Paragard? I know it impacted a lot of women and I know that you’re passionate about supporting them. But how did you get involved in the Paragard litigation?

Erin Copeland (09:36):
This came to me as a result of my relationships with very knowledgeable and qualified attorneys in the field, but they were men. And essentially they needed some women to join the litigation that is being pursued on behalf of women.

Susan Barfield (10:00):
Well, that’s a smart man that reached out to you.

Erin Copeland (10:03):
So, a few of us were essentially tapped informally, and this case was brought to us to consider. And we said absolutely once we took a look. It wasn’t that easy sell for us, but once we took a look… And it wasn’t an easy sell for us, simply because we were already working on a litigation and we were gearing up for trial and busy. But we knew that this particular litigation and the women who we believe were injured as a result of the Paragard product needed some assistance. And quite frankly, we thought we were the most qualified to do it. So, once we were tapped, we took a look at the cases and said, “Sure, we’ll get involved. This is what we expect to have happen in this litigation, and this is what we’re going to essentially demand if we do come on board.” So, Paragard and the leadership of Paragard was born from that example that I described earlier, that we were contacted and the court graciously allowed the plaintiff’s attorneys to collaborate and come up with a slate and form ourselves, form the committee ourselves. We presented it to the judge and she graciously signed off on it. So, kind of how the Paragard leadership came about for me.

Susan Barfield (11:20):
Yeah. That’s awesome. And for the listeners that maybe aren’t as familiar with this tort, can you share with us the reported injuries and any strategy going forward on this case?

Erin Copeland (11:31):
Sure. The strategy we’ll keep a little bit secret, but the injuries and what this case is about. As I mentioned earlier, the Paragard product, and I use the term product, and it’s taken a lot to get that terminology beat into my head, because the Paragard product is an IUD and we liken IUDs or any implantable product to be a device. Oddly enough, the Paragard is regulated as a drug. So, that’s an interesting twist in this particular litigation. So, we’ve had to take my decades long experience working on women’s medical devices, and then turn this mindset and this thinking and strategy into pursuing a pharmaceutical drug. So, this is an IUD, it’s a form of temporary birth control. It is touted to be one that is easily implanted into a woman for purposes of temporary birth control. And she will either decide that she needs to have it taken out because the expiration date has happened, and she’s just going to have it replaced. Or she’s going to start her family and start having children. Or she’s going to continue her family, because maybe she took a pause in having children and has decided she wants to have children now.

Erin Copeland (12:56):
So, that’s the backdrop of the Paragard. But in addition to being advertised or touted to be something that’s easily implantable, it’s also advertised in market is something that’s easy to be removed. And what we have found, and we’re confident that the evidence is going to prove, is that when the woman goes in to have the Paragard product removed from her body, it doesn’t always come out as easily as they said it was. It will come out broken. It’s a T-shaped device. I don’t know if you can see that. It’s a T-shaped device and we call this the arms. Each side has an arm. And what was happening is when the woman goes in and has the Paragard product removed, one or both of the arms is broken off the T. And that requires some additional medical treatment to remove those broken fragments from the woman’s body. And sometimes the injuries can be as severe as a woman having a hysterectomy. So, you can imagine what that’s like when you’ve got a woman of childbearing years who was looking for contemporary birth control, who in the worst-case scenario is never able to have children or never able to continue growing her family because this product has broken inside of her body and now doctors are having to do sometimes some super invasive procedures to have those fragments removed. That’s really what this case is about.

Erin Copeland (14:22):
And for anybody that’s looking at the Paragard product cases, it has to involve that breakage. And the impetus of that is a 2019 label change. In September of 2019, the Paragard label was modified, if you will, to include breakage as a potential effect of the product. And it’s our position that breakage was never part of the label. You can run a word search on the labels that existed prior, and breakage is not there. So, when this case was presented to the JPML to create an MDL status, breakage was the basis for it, and breakage was included in the JPML order that created the MDL that’s pending in the northern district of Atlanta in front of Judge May. So, these cases have to include breakage for there to be a case. And a lot of people do ask, well, what about all the other injuries that are associated with this product? Because I believe that there are other injuries associated with this product.

Erin Copeland (15:33):
But the problem that we have is, number one, that the JPML did create this to be a breakage case. And quite frankly, if you want to file using a short-form complaint and get directly into the MDL, you actually have to certify that the case that’s being filed involves breakage of the IUD. But also, arguably, other types of injuries associated with this product were included in the label prior to 2019. So, it’s that label change in 2019 to incorporate breakage that form the basis of it. So, that has to be the types of things that go into the MDL.

Susan Barfield (16:16):
Yeah. Yeah, no, that makes sense. And I know you might not be able to share all the strategy, but any insights on just the litigation and kind of moving forward?

Erin Copeland (16:26):
Sure. We’ve had a tough and slow road so far. This MDL was created two winters ago. Leadership was formed and ordered in place shortly thereafter. And once we went through the motion to dismiss process, which we defeated, discovery was immediately opened up and the plaintiff’s did our part by serving a pretty comprehensive set of document requests and requested a couple of basic depositions, like corporate structure. But getting that material and getting those depositions has been like pulling teeth. You’re hot off the presses essentially. We had our last monthly status conference with our court. We have them monthly. And the last one was just last week. And we brought issues about the delays in production of relevant documents to the court’s attention. And she rolled up her sleeves and spent four hours with us going through methodically every request that we made, and essentially ordered that the defendants get the documents produced to us so that we can get this show on the road.

Erin Copeland (17:45):
Yeah. Right. What’s happening right now, again, it just happened last week. So, we’re expecting to get a lot more documents in the very near future. And we’ve also noticed approximately another six depositions to take place. So, we’re hoping that we can get in there and get the proof that we needed. We obviously filed these lawsuits and got this MDL based on documents that we had received in the past, that certainly suggest that there are the problems that we are relating. And even the documents that have been produced to date are certainly demonstrating that our theory is valid and that the evidence is there. But like in any case, they’re going to make us dig and push to get to the [inaudible 00:18:34] and that’s what we’re going to next.

Susan Barfield (18:36):
Yes. Well, good. Well, that’s good information and great to know that she spent all that time trying to help move and have some momentum to see this push forward. As far as thinking to some of our viewers and the attorneys that reach out to us after streams, a lot of them are personal injury attorneys. I’m just curious of what you would say. Some are attorneys that say, now I really want to get into mass tort, but I’m just not sure. I don’t know if I have the infrastructure. I’m not really sure about mass tort. What are some of the… I’m sure you’ve been approached by PI attorneys and giving your opinion and thoughts and consideration on getting into mass tort. What have you suggested or have them consider before making investment into mass tort cases?

Erin Copeland (19:23):
One of the things that… One of the many things that I would say to somebody who’s actually interested in getting involved, is to be very, very selective. Some attorneys that jump from single event, PI cases like myself might view this as so daunting because, at any given time, there are multiple MDLs, multiple mass torts going on at one time. And we think, oh, because I’m going to be a mass tort lawyer, I’m going to do them all. You don’t have to think that way. Start small would probably be my best advice to somebody who’s literally just getting in. Look around, look and see if there’s any type of case that’s pending that looks like something that you have some experience doing, and then get into something like that. Once you kind of get your feet wet, so to speak, and you kind of understand that the process administratively runs differently than a single event case, it is kind of managed by the leadership structure.

Erin Copeland (20:32):
And unless you’re in the leadership, you somewhat lose control over the general process of your case. Not necessarily your single plaintiff. You will always control that single plaintiff. But the workup from a general aspect is essentially out of your hands and put into the hands of the leadership. So, you’re going to want to make sure that you are prepared for that control to be taken away. But if you want to get involved hands on, make sure that it’s something that you know you’ve got at least some experience with. So, I always say, look at what’s out there, be selective, pick something that, number one, interests you, but you might have some experience in, because that might give you that ability to get involved and actually participate, as opposed to getting involved in handing over the management of your case completely to the MDL leadership.

Susan Barfield (21:35):
Yeah. Yeah. That makes sense for sure. And what was the first mass tort work that you got involved in? Was it transvaginal mesh? Is that what you were saying?

Erin Copeland (21:43):
Trans vaginal mesh was the first one that I had a leadership role in. My firm has been in existence for years and years and years, in some way, shape, or form. And so I came in in 2000, well, ’99, if you count my last year of law school in ’99. And, and they had been involved in [inaudible 00:22:04]. So, we are definitely an experienced mass tort firm, but my first hand experience in a leadership capacity was going to be with trans vaginal mesh.

Susan Barfield (22:15):
Well, last question. What has been your favorite tort and what has been a tort, maybe your least favorite that you worked on?

Erin Copeland (22:23):
Ooh, that’s a tough one. I’m probably going to say Essure was my favorite because, well, I mean, success is always a good thing.

Susan Barfield (22:36):
Yeah, sure. Yes.

Erin Copeland (22:39):
But Essure litigation was brought about by someone that I consider a friend and she reached out to me, and this was something that she had kind of put her head to and said, I think we can do this. And we did it from the ground up. And we for the longest time were… This was a device that had issues of preemption. So, for quite a while, we were kind of frowned upon like, what in the world are you guys doing with this product and this case? Because you’re going nowhere. And we got to work up that and we ultimately got it resolved. So, I’m always going to look fondly on the Essure litigation, and having an opportunity to work in leadership and work hand in hand with your friends is always a good experience. Gosh, I probably can’t say what’s the worst because I’m not sure that I’ve had one that’s just awful. But maybe the ones that never end, which I [inaudible 00:23:54] doesn’t turn out to be that one. But golly, just getting a document from my defendants in this case has proven to be crucial, or hard. Pulling teeth. And so I hope that we’re not talking about this case on another one of your streams four years from now when I’m going, we’re still looking for documents.

Susan Barfield (24:20):
Yes. I know. Getting documentation is just unnecessarily difficult.

Erin Copeland (24:25):
I can certainly say, and there’s certainly people out there that you should speak to. I have not been involved yet in any of the litigations that have this devastating bankruptcy issue coming about. But if I had any of those cases, I would certainly be telling you this Texas two step maneuver that’s happening right now is devastating for all of us.

Susan Barfield (24:53):
Sure. Yeah, absolutely. Well, Erin, it has been such a real pleasure having you on our stream and having you share insights about the torts and your background and MDLs and the leadership committee. So, thank you so much for taking the time to spend this afternoon with us and we’ll have all your information, so if anyone wants to get in touch with you, they will be able to reach out to you directly.

Erin Copeland (25:17):
Thank you for reaching out and thank you for listening to me.

Susan Barfield (25:19):
Yeah, absolutely.

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