95% Settlement Tort Case Rule
I know those of you who are severely injured will be dancing for joy when you get your settlement offer. Okay that is a joke.
Sometimes it is good to get on Google and hunt when you are part of a tort lawsuit. This way you can learn exactly what will happen if you don’t like your offer. Today I am taking part of a open settlement I found and I will give you a few highlights and then the link at the bottom of this blog.
I personally have never been involved in any lawsuit throughout my life. I have never needed to learn anything about them, but figure what I don’t learn, can hurt me, so I am making a point to learn and so should you. I found the AMS settlement without any problems and you should be aware that all these settlements by every manufacturer will follow the same principal. You should also remember that although your lawyer says he/she is working for you, that he/she is working for themselves and not you and they stand to gain millions from our circumstances, while we will more than likely will be handed a pittance for our injuries. So stop sitting around and waiting for millions to fall in your lap all because you have followed Jane Akre’s bullshit and you believe it will happen. The hype she writes is for lawyers to gain more clients and she is not your friend or mine. Start wising up and think about what you will do if your offer is below what you think it should be. You do NOT have to accept it because there is a 95% rule that 95% of the women have to accept and sign, or it will be back to the drawing board. So don’t feel coerced into doing anything.
So first for those of you who were/are married, this part should interest you. Your spouse may think they will be compensated because they have not or perhaps will never have sex with you again, but they won’t be. So I hope your partner isn’t staying with you because they expect a nice windfall.
This agreement is open on the Internet and I did not obtain in any other way but by Googling to search for answers. First, here is part of the agreement between AMS and those who sued them. I am beginning on page 7. I just want you to read the most important parts so you have plenty of time to think before you sign anything.
Three law firms agreed to 54.5 million dollars and this is part of their agreement. I highlighted some of the facts so that women can read several times over and understand BEFORE they sign anything.
Agreement are not met or a Claimant does not resolve his or her case and/or claim under the Master Settlement Agreement, then the period of tolling shall expire thirty (30) days after notice that the conditions of the Master Settlement Agreement have not been met, or thirty (30) days after notice that the Claimant’s Claim has not been resolved under the Master Settlement Agreement, whichever event occurs later.
In no event does the above tolling provision revive or renew any limitations or repose period that may have already expired prior to the Effective Date.
Claimants Counsel agree not to set a previously tolled case for a trial prior to (1) year from the Effective Date.
RELEASE OF CLAIMS
1. Release, Indemnity and Assignment. A “Release of All Claims” (hereinafter “Release”) will be appropriately executed for or by each Claimant participating in the settlement. Claimants Counsel will provide AMS with (1) full name(s); (2) Social Security number(s); and (3) current address(es) for the Claimants executing a Release. Claimants Counsel will provide to Claimants full disclosure of the terms of this Master Settlement Agreement as required by applicable state ethics rules corresponding to Rule 1.8(g) of the ABA Model Rules of Professional Conduct.
2. Execution by Spouses and Former Spouses.
a. Any spouse, former or current, who was not married to Claimant during the time Claimant alleges she suffered injury shall not be required to execute a Release.
b. Any person who was married to Claimant during the time she alleges she suffered injury shall be required to execute a Release, so long as that person continues to be married to Claimant and resides with Claimant;
So they need to sign a release for you to receive compensation from your lawsuit. However if you don’t agree to sign, your partner can’t force you. If someone tries, you need to call someone, police or head to a shelter and make sure you are not bullied into signing.
c. A former spouse who was married to Claimant during the time she alleges she suffered injury shall be required to sign a Release if the former spouse brought a Claim or lawsuit against AMS;
Note; if your spouse divorced you during the time of your lawsuit, then more than likely they will need to sign a release.
d. With respect to the above, AMS recognizes there may be circumstances making it impractical to obtain spousal execution and will work cooperatively and in good faith with Claimants Counsel to reach a resolution permitting the Claimant’s settlement to be finalized, including agreeing when appropriate that the spouse need not execute the Release;
3. Released Parties. The Release shall provide that each Claimant fully release AMS and any other entities or persons as required by AMS.
4. Released Claims.
The Release fully sets forth the Claims to be released by the settling Claimant pursuant to this settlement and the terms for indemnification and contribution.
Next up on page 8 is your medical bills from everything to do with your mesh complications. Surgeries for sure and I am sure doctor’s visits. It will be up to you to call your Insurance companies, Medicare or Medicaid and get everything in writing. Note: I was told about future bills concerning your mesh injury by someone who also did a thorough job of reading. So don’t think it stops when you settle. It is here below.
5. Medical Bills, Liens, and Other Potential Rights for Reimbursement. The Release and Paragraph IV.O below fully sets forth the terms for satisfaction of all past,
present and/or future bills, costs or liens resulting from or arising out of Claimant’s alleged medical complications following implantation of the AMS Mesh Product/s, including the procedure if Claimant has received payments from Medicare and/or Medicaid, a Medicare and/or Medicaid intermediary or carrier, or any other federal or state government, agency or entity. Additionally, the Release for each Claimant will contain the representations, warranties and indemnification provisions contained in Exhibit E.
The following is also on page 10.
No sooner than thirty (30) days after the Master Settlement Agreement is signed and an escrow agent mutually agreed upon by the Parties (the “Escrow Agent”), AMS will pay the total sum of Fifty-Four Million, Five Hundred Thousand Dollars ($54,500,000.00) (the “Settlement Amount”) into a settlement fund (the “Settlement Fund”) held in escrow by the Escrow Agent, provided that mutually agreeable escrow arrangements are made with a financial institution (chosen by Claimants Counsel and subject to approval by AMS, which will not be unreasonably withheld) and an Order is entered by a District Court of Dallas County, Texas, or some other mutually agreeable jurisdiction establishing such fund as a Qualified Settlement Fund within the meaning of Treasury Regulation Section 1.468B-1.
The Settlement Fund shall be held at a mutually agreed upon Bank (the “Bank”). Said financial institution shall be responsible for any and all investment-related decisions, following the Settlement Fund Administrator’s investment policy for fiduciaries, which is based on safety of principal, no bank balance sheet exposure and zero sweep accounts for distributions to Claimants once authorized. The Settlement Fund Administrator shall not authorize any distributions of income or principal from the Settlement Fund except pursuant to joint instruction to the Settlement Fund Administrator by AMS, or its counsel, and Claimants Counsel. No other person or entity is permitted to authorize or make any withdrawals from the Settlement Fund.
MINIMUM NUMBER OF EXECUTED RELEASES
This is the important part on page 11.
Claimants Counsel agree to obtain an executed Release from a minimum of ninety-five percent (95%) of all Claimants which shall include one hundred percent (100%) of the Required Release Filed Cases (the “Distribution Threshold”).
In the event Claimants Counsel meet the Distribution Threshold within one hundred twenty (120) days after the Effective Date, AMS will not receive the return of any Individual Allocated Amount (as defined in Paragraph IV.L.). Claimants Counsel will continue to employ their best efforts to obtain an executed Release from 100% of Claimants following expiration of the 120-day period.
They will keep trying to get you to sign and settle.
In the event Claimants Counsel fails to meet the Distribution Threshold, within the earlier of the date Claimant’s Counsel declares all potential Releases have been received or one hundred twenty (120) days after the Effective Date, then AMS shall have the option of (i) voiding the entire Agreement and receiving in return all money deposited in the Settlement Fund, along with all accrued interest, within fifteen (15) days after such deadline or (ii) accepting the Releases provided and receiving the return of the Individual Allocated Amount (defined in Paragraph IV.L.) for only those Claimants below the ninety-five percent (95%) Distribution Threshold, plus the pro rata share of any accrued interest, within fifteen (15) days after such deadline.
WITHDRAWAL OF COUNSEL
To the extent permitted by the rules of professional conduct in any jurisdiction in which the firm may practice, Claimants Counsel agree to take all necessary steps to disengage and withdraw from the representation of any Claimant who declines a settlement offer under this Master Settlement Agreement or who fails to provide an executed Release.
Women have been told by their lawyers that they will take their case to trial if they don’t agree but it is in their best interest to agree. However, if your bottom line is a few thousand dollars, then you have to make up your mind how you feel. You should also know your case is not dead if you don’t accept the offer.
Next something very, very important to note about the AMS agreement.
Each Claimant will participate in the funds designated for that Claimants respective category, which will be based on the medical condition known from the medical records received by counsel as of May 31, 2013.
So ask your lawyer what this means. Does it mean you had no claims after May 31st 2013 or if it was extended, when was the cutoff date? Does this mean any surgeries after this date means nothing? I believe by reading this that it does.
If you thought losing your career was worth something, think again and read this on page 13.
The Parties acknowledge and agree that the settlement payments hereunder are exclusively for alleged bodily injury — meaning actual physical injury to the body of a person resulting in sickness, disease, disability, or death — and no payment hereunder is, or shall be deemed to be, attributable to any other damage claim, including without limitation any claim for lost wages, lost income, diminished earning capacity, or punitive damages, notwithstanding that such additional damage Claims are within the scope of the Release, and accordingly zero dollars ($0) is placed on such Claims. The Parties expressly disclaim that AMS has any responsibility or liability for any allocations or any distributions of the Settlement Fund or for reporting requirements related thereto that are imposed on Claimants or Claimants Counsel by applicable state or federal laws.
The following is on page 14 and 15. You will be require to sign to say even if one of AMS products kills you, your family will never be able to sue for wrongful death. You can never sue them for anything that happens to you concerning the product that maims or injures you. How much is this worth to you is the big question? So if you get $5000 from your settlement is it worth it to you? That is what you should ask yourself. Remember something., YOUR lawyer has to agree to all this in the first place. How do you feel about that?
RELEASES, WAIVERS, AND DISMISSALS
Dismissal of Claims.
This Master Settlement Agreement and the distribution of funds to Claimants are conditioned upon AMS receiving releases and waivers from Claimants for all past, present, and future AMS Mesh Products related Claims in the form attached hereto as Exhibit E. The Parties agree that before any individual Claimant receives a settlement payment, such Claimant must either dismiss with prejudice his or her Filed Case, including derivative Claims, and provide a Release or if no lawsuit has been commenced, provide AMS with a Release of all AMS Mesh Products Claims, whether or not asserted by the Claimant. Such dismissals and waivers shall terminate the subject lawsuit or released Claim as to all AMS named parties, including affiliates, in their entirety and provide that AMS and Claimants each
shall be responsible for their own costs and fees. Dismissals shall be effective as to all AMS named parties and affiliates, but shall not constitute a release or satisfaction of Claims against any non-AMS party.
This is on pages 15 and 16.
LIENS, ASSIGNMENT RIGHTS, AND OTHER THIRD PARTY PAYOR CLAIMS
Claimants Counsel shall appoint a Lien Resolution Administrator (“LRA”) to perform certain functions in connection with liens and/or reimbursement Claims, including, but not limited to, those that may be asserted with respect to federal Medicare (Part A and B) benefits (“Medicare”) as contemplated by the Medicare Secondary Payer Act, 42 U.S.C. §1395y; Medicaid liens; and certain other governmental health care programs with statutory reimbursement or subrogation rights (specifically, TRICARE, VA, and Indian Health Services benefits). Each settling Claimant shall be required to
cooperate with the procedures and protocols established by the LRA and approved by AMS, including but not limited to providing a fully executed Medicare Form B prior to release of any funds. The LRA’s fees and expenses may be paid out of the Settlement Fund as a reasonable expense.
Regardless of any limitation as to the scope of the LRA’s responsibilities described above, as to any right or claim to any portion of any settlement proceeds hereunder, including without limitation any right or claim based on payment for or reimbursement of any injury-related medical expenses
alleged to be caused or arise from medical complications following implantation of an AMS Mesh Product, which include, but are not limited to, drug costs, hospital expenses, medical expenses, physician expenses, or any other health care provider expenses arising from or based upon the provision of medical care or treatment to settling Claimants or interests they represent, each settling Claimant shall identify (i) all statutory claim or lien holders, including government payors such as Medicare and Medicaid; (ii) any other holders of claims or liens as to which the Claimant or Claimants Counsel has received notice; and (iii) any parties to lawsuits or interventions, including by subrogation, possessing any right or making any claim. Prior to distribution of any funds from escrow or similar settlement account for a settling Claimant, such settling Claimant and Claimants Counsel (whether through the LRA or otherwise) shall have provided (through the LRA or otherwise) all information that AMS may need to comply with reporting requirements applicable to it, including under Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (“MMSEA”) (P.L. 110-173), codified at 42 U.S.C. § 1395y(b)(8), and shall authorize AMS to report such information to applicable authorities. In addition, prior to distribution of any funds from escrow or similar settlement account for a settling Claimant, such settling Claimant and Claimants Counsel shall have represented and warranted that any and all liens, assignment rights, and other claims for a Claimant, where Claimant or Claimant’s Counsel have been put on notice for a specific Claimant, have been or will be satisfied or otherwise resolved by the settling Claimant
In other words our Government who set up the FDA where these products slipped through without any testing in the human body wants all their expenses back.
The settling Claimants shall agree that they are releasing AMS from all medical expenses, including, but not limited to, drug costs, hospital, medical, physician, and health care provider expenses relating to any past, present, or future medical care or treatment, arising from or in connection with alleged medical complications following implantation of an AMS Mesh Product. Nothing in this Master Settlement Agreement will be construed as expanding the legal rights of any claim or lien holder for reimbursement of any lien, assignment, or claim or any portion of same thereof asserted against a settling Claimant and Claimants Counsel beyond those rights currently provided under applicable law, including the expenses of any lien or other claims or rights to include a lien or other claims or rights to withhold attorneys’ fees and expenses of Claimant’s Counsel.
NO ADMISSION OF LIABILITY
This Master Settlement Agreement is entered into solely by way of compromise and settlement and shall not be construed as an admission of liability, responsibility, or fault of or by AMS. AMS expressly denies any liability or wrongdoing to Claimants on the part of itself, including its officers, employees, parents, subsidiaries, related entities, affiliates, contractors, distributors, agents and assigns.
Of course there is all the disclaimers if you tell anyone how much you received and they will take it back.
Tim K. Goss, Esquire David Matthews
Freese & Goss, PLLC Matthews & Associates
3031 Allen Street, Suite 200 2905 Sackett
Dallas, Texas 75204 Houston, Texas 77098
(214) 761-6610 (phone) (713) 222-8080 (phone)
(214) 761-6688 (fax) (713) 535-7184 (fax)
For AMS, notice shall be provided to:
Barbara R. Binis, Esquire
Reed Smith LLP
2500 One Liberty Place
1650 Market St.
Philadelphia, PA 19103
Office Phone: 214-851-8100
This settlement agreement was negotiated by the three lawyers above. Do you recognize yours? I hope this blog explains some real facts for you to understand what this is all about. Like I said I found it openly by Googling AMS settlement agreement. This is the link. I suggest you share it with any woman who has a lawsuit so she understand exactly what will happen. Some time back my daughter wrote a blog about the 95% rule and this is that link