EXHIBIT B

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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA 

CHARLESTON DIVISION 

IN RE: ETHICON, INC., 

 PELVIC REPAIR SYSTEM 

 PRODUCTS LIABILITY LITIGATION MDL No. 2327 

------------------------------------------------- 

THIS DOCUMENT RELATES TO ALL CASES 

PRETRIAL ORDER # 211 

(ORDER ESTABLISHING CRITERIA FOR APPLICATIONS TO MDL 2327 FUND TO 

COMPENSATE AND REIMBURSE ATTORNEYS FOR SERVICES PERFORMED AND 

EXPENSES INCURRED FOR MDL ADMINISTRATION AND COMMON BENEFIT 

AND APPOINTMENT OF COMMON BENEFIT FEE AND COST COMMITTEE) 

 These MDL proceedings have been ongoing for the past several years, and the Court finds 

that it is the appropriate time to establish the process for reviewing and managing common benefit 

fees and expenses. The Court is not, by entering this Order, implying that it will immediately 

begin receiving applications for recovery of fees and expenses from counsel.1

 That will be dealt 

with in the future as set forth more fully herein. The Court will focus at the appropriate time, based 

on recommendation from the committee appointed below, on final evaluation of common benefit 

applications for any counsel who believe that they have legitimate common benefit time and 

expenses. At this time, the Court is merely identifying a process and the committee who will carry 

out the process of efficiently reviewing time and expenses and dealing with any ancillary issues or 

requests that exist or come forth in the short term. 

 

1

 In the PTOs already entered by the court on the topic of common benefit attorneys’ fees and expenses, counsel who 

wish to receive common benefit attorneys’ fees and expenses have been referred to as “participating counsel” and 

“eligible counsel.” In this order, the court has referred to these individuals more generically as counsel, attorney or 

firm. 

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It is ORDERED that for time and expenses that have not been submitted to date, counsel 

are granted 60 days from the date of this Order (1) to submit time and expenses that have not been 

submitted but are legitimate time or expenses; and (2) to modify already submitted time and 

expenses to amend or correct any prior submission which is deemed currently inappropriate for 

consideration for reimbursement. 

This Order is entered to set forth the process for the fair and equitable sharing among 

plaintiffs’ counsel of the Common Benefit Fund established by Pretrial Order # 18. This Order is 

simultaneously being entered in each of the seven MDLs assigned to the court. This Order 

specifically incorporates by reference herein Pretrial Order # 18 (Agreed Order Regarding 

Management of Timekeeping, Cost Reimbursement and Related Common Benefit Issues), Pretrial 

Order # 62 (Agreed Order Establishing MDL 2327 Fund to Compensate and Reimburse Attorneys 

for Services Performed and Expenses Incurred for MDL Administration and Common Benefit) (as 

amended by Pretrial Order # 134), and Pretrial Order # 201 (Order Establishing Reporting on 

Payment to the MDL 2327 Fund). 

A. Appointment of Common Benefit Fee and Cost Committee 

To facilitate an efficient and equitable process for the application and evaluation of all 

requests for Common Benefit fees or expenses in all the transvaginal mesh MDLs, the Court 

appoints a committee who is responsible for recommending to the Court the allocation of awards 

of attorneys’ fees and costs to be made by the Court from the MDL 2327 Fund and any other 

utilization of the funds. Pursuant to the Court’s inherent authority over this multidistrict litigation, 

it is ORDERED that the following individuals are APPOINTED to serve on the Common Benefit 

Fee and Cost Committee (“FCC”): 

 

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Henry G. Garrard, III 

Blasingame, Burch, Garrard & Ashley, PC 

440 College Ave., Ste. 320 

Athens, GA 30601 

706-354-4000 

706-549-3545 (fax) 

hgg@bbgbalaw.com

Joseph F. Rice 

Motley Rice, LLC 

28 Bridgeside Blvd. 

Mount Pleasant, SC 29464 

843-216-9000 

843-216-9450 (fax) 

jrice@motleyrice.com

Clayton A. Clark 

Clark, Love & Hutson, GP 

440 Louisiana St., Ste. 1600 

Houston, TX 77002 

713-757-1400 

713-759-1217 (fax) 

cclark@triallawfirm.com

Carl N. Frankovitch 

Frankovitch, Anetakis, Colantonio & Simon 

337 Penco Road 

Weirton, WV 26062 

304-723-4400 

304-723-5892 (fax) 

carln@facslaw.com 

Yvonne Flaherty 

Lockridge Grindal Nauen 

Suite 2200 

100 Washington Avenue South 

Minneapolis, MN 55401 

612-339-6900 

612-339-0981 (fax) 

ymflaherty@locklaw.com 

Thomas P. Cartmell 

Wagstaff & Cartmell, LLP 

4740 Grand Avenue, Suite 300 

Kansas City, MO 64112 

816-701-1100 

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816-531-2372 (fax) 

tcartmell@wagstaffcartmell.com 

Renee Baggett 

Aylstock Witkin Kreis & Overholtz 

Suite 200 

17 East Main Street 

Pensacola, FL 32502 

850-202-1010 

805-916-7449 (fax) 

RBaggett@awkolaw.com

Riley L. Burnett, Jr. 

Burnett Law Firm 

55 Waugh Drive, Suite 803 

Houston, TX 77007 

832-413-4410 

832-900-2120 (fax) 

rburnett@rburnettlaw.com 

William H. McKee, Jr. 

1804 Louden Heights Road 

Charleston, WV 25314 

304-546-2347 

bmckee@suddenlink.net 

The appointment to the FCC is of a personal nature. Accordingly, in the performance of 

the FCC’s functions (such as committee meetings and court appearances), the above appointees 

cannot allow others to substitute for them in fulfilling this role, including by any other member or 

attorney of the appointee’s law firm, except with prior approval of the Court. The Court has 

appointed William H. McKee, Jr. d/b/a WHM Resources LLC, to the FCC as a non-attorney 

participant with no financial interest in the common benefit fund. The Court finds that the duties 

of Mr. McKee, as a non-attorney participant, do not involve the provision of professional services 

— legal, accounting, or otherwise. He will be compensated quarterly by the common benefit fund 

for his service. Such compensation must be approved by the Court. Henry Garrard shall serve as 

Chairperson of the FCC. The FCC is charged with engaging in confidential discussions as part of 

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the FCC’s function. Persons not specifically invited by a two-thirds vote of the FCC shall not 

attend meetings of the FCC. 

It shall be the responsibility of the FCC to make recommendations to the Court for 

reimbursement of costs and apportionment of attorneys’ fees for common benefit work and any 

other utilization of the funds. 

B. Criteria for Common Benefit Applications 

The Court, in considering any fee award, will give appropriate consideration to the 

experience, talent, and contribution made by any eligible attorney or law firm submitting an 

application for reimbursement of costs and apportionment of attorneys’ fees from the MDL 2327 

Fund for work performed for common benefit. The Court will also give appropriate consideration 

to “the time and effort expended” and the “type, necessity, and value of the particular legal services 

rendered.” PTO # 62, § 4(b). In making its recommendations to the Court, the over-arching 

guideline that the FCC must consider is the contribution of each common benefit attorney to the 

outcome of the litigation. The FCC’s considerations should be governed and guided by the 

following comprehensive statement of general principles: 

1. The extent to which each firm made a substantial contribution to the outcome 

of the litigation. A law firm may contribute to the outcome of the litigation at any stage of the 

proceedings, including drafting master pleadings, common written discovery, liability depositions, 

expert work, briefing, hearings, trials, settlement, and coordination and administration of MDL 

2327. All contributions are not necessarily equal and the FCC shall appropriately weigh the 

contributions. 

2. The quality of each attorney or firm’s work. Attention shall be paid to the quality 

of the work performed separate and apart from the length of time required to perform it. An 

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attorney or law firm providing common benefit should not be penalized for efficiency, nor should 

inefficiency be incentivized. The FCC shall consider all work that was a benefit and may likewise 

consider actions that were detrimental. 

3. The consistency, quantum, duration, and intensity of each attorney or firm’s 

commitment to the litigation. The level of commitment, from the inception of the MDL through 

its resolution, demonstrated by a common benefit attorney or law firm shall be considered. The 

touchstone of common benefit work is that it must inure to the benefit of the claimants as a whole. 

Accordingly, emphasis should be placed on work product and materials that are provided to 

counsel to prepare for trial. While the total number of hours spent toward appropriate common 

benefit activities should be considered, the Court is primarily concerned with substantive 

contributions and not simply the total number of hours. For example, hours spent developing 

litigation strategies or preparing for and participating in trials generally provide greater common 

benefit than hours spent reviewing and coding documents. 

4. The level of experience, reputation, and status of each attorney and firm, 

including partner participation by each firm. The extent and nature of participation by partnerlevel attorneys provides some evidence of the level of commitment to the litigation by attorneys 

seeking common benefit fees or expenses. Further, the participation and dedication by experienced 

attorneys from a law firm would provide some evidence of commitment as well. 

5. The jurisdiction in which non-MDL common benefit work occurred. Common 

benefit work performed in state court litigation — whether the proceedings are consolidated or not 

— should be considered to the extent it contributed to the outcome of the litigation and benefitted 

the MDL. The Court recognizes, particularly to the extent there are agreements between state 

court attorneys and MDL leadership, that state court attorneys may make an application for 

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common benefit fees and expenses to be fully considered by the FCC. In order for an attorney’s 

work in state court litigation to be considered for payment from the Common Benefit Fund, 

settlements from the requesting attorneys must include the five percent assessment provided for in 

PTO # 62, as amended by PTO # 134. In addition, counsel must comply with the 60-day deadline 

provided in the introductory paragraph of this Order. 

6. Activities surrounding trials of individual claimants, including bellwether 

trials, consolidated trials, cases transferred or remanded for trial, and non-MDL trials that 

impacted proceedings on a common benefit level. The focus of this inquiry is the role played by 

counsel at trial. Greater emphasis is placed on substantive contributions made by counsel or the 

counsel’s team at a particular trial that provided a common benefit. 

7. Membership and leadership in positions within the MDL. Membership and 

leadership in positions on committees engaged in common benefit work should be considered. 

8. Whether counsel made significant contributions to the funding of the litigation 

and creation of the Common Benefit Fund. Contributions to the funding of the litigation include 

counsel’s contributions to the MDL through Plaintiffs’ Steering Committee assessments and held 

costs from expenses related to the common benefit of the litigation. The relationship of the 

contributions to the amount of funds received pursuant to PTO # 62 (as amended by PTO # 134) 

should be considered by the FCC. 

9. Commitment to and efforts toward overall resolution of the litigation. The 

MDL process brought cases from multiple federal jurisdictions to this Court. The Court placed 

significant responsibility on certain counsel to actively participate in common resolution of cases 

and that work and effort should be considered by the FCC. 

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10. Any other relevant factors. The FCC will be guided by governing fee 

jurisprudence in determining the reasonableness of the allocation, including the factors enumerated 

in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). The Barber factors include (1) 

the time and labor required; (2) the novelty and difficulty of the questions raised; (3) the skill 

required to properly perform the legal services; (4) the attorney’s opportunity costs in pressing the 

litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of 

litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in 

controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; 

(10) the “undesirability” of the case within the legal community in which the suit arose; (11) the 

nature and length of the professional relationship between the attorney and client; and (12) the size 

of the fee awards in similar cases. Id.

11. The FCC’s implementation of this Order and its recommendations to the Court 

regarding allocation of common benefit fee awards and reimbursement of expenses should be 

governed and guided by this comprehensive statement of general principles. The FCC is to 

consider the relative common benefit contribution of each attorney to the outcome of the litigation, 

including whether the attorney: 

a. Made no known material common benefit contribution to the litigation; 

b. Made isolated material common benefit contributions, but mostly “monitored” the 

material common benefit efforts of other firms and performed some document 

review; 

c. Made periodic material common benefit contributions and/or mostly performed 

document review; 

d. Made consistent material common benefit contributions from inception of the 

litigation; 

e. Was a leader taking primary responsibility to accomplish the goals of the Plaintiffs’ 

Steering Committee and was heavily relied upon by the Executive Committee and 

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provided consistent material common benefit contributions, full-time at times, from 

inception of the litigation; 

f. Was a senior leader taking primary responsibility to accomplish the goals of the 

Plaintiffs’ Steering Committee, organized others and/or led a team of common 

benefit attorneys, was heavily relied upon by the Executive Committee and 

provided consistent material common benefit contributions almost full-time for a 

substantial time during the litigation; or 

g. Was a senior leader providing maximum senior leadership effort in terms of 

intensity, consistency, and duration relative to all other common benefit counsel, 

taking primary responsibility for entire litigation to accomplish the goals of the 

Plaintiffs’ Steering Committee, engaging in overall strategic planning since the 

inception of the litigation, organizing others and/or leading one or more teams of 

common benefit attorneys, providing consistent material common benefit 

contributions, virtually full-time for much of the litigation, and will likely continue 

to assume a key leadership role for several more years. 

Other special considerations here include: 

a. Counsel will not be compensated for work performed without prior authorization 

by Coordinating Co-Lead Counsel or the Co-Lead Counsel of MDL 2327. 

b. Monitoring and review of work not related to ongoing common benefit assignments 

is not compensable. 

c. Where work was performed by contract attorneys or professionals, counsel are 

required to disclose the salary/wage of such contract attorneys and that should be 

considered by the FCC. 

In making its recommendations to the Court, the FCC shall exercise its discretion in 

evaluating what work and expenses furthered the common benefit of the litigation. The above 

guidelines provide direction, but do not create entitlements and do not override the independent 

judgment and discretion of the FCC or the Court. 

C. Common Benefit Application Process 

 It is the directive of the Court that the FCC begin meeting to discuss the process of 

reviewing hours that are submitted as of March 15, 2016; determine an application process for 

applying for fees and expenses; and determine the mechanics of applications and the contents of 

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the application. It is the directive of the Court that any application that is submitted to the FCC 

shall be signed by a senior partner of the law firm attesting to its truth and accuracy. In setting out 

this directive, the Court is not by this Order setting a time by which applications are to be received. 

That timing will be determined by the Court in consultation with the FCC. 

 It is the responsibility of the FCC to conduct meetings, at the appropriate time, during 

which any counsel who has submitted an application for common benefit compensation may, at 

his or her discretion, separately appear and present the reasons, grounds, and explanation for their 

entitlement to common benefit fees. Meetings shall be held at locations to be determined by the 

FCC. The FCC may set a limitation on the time allocated for any presentation. 

 At the appropriate time, the FCC shall make recommendations of fee allocations and cost 

reimbursements pertaining to all counsel applying for attorneys’ fees and costs. The FCC shall 

provide to each attorney, notice of recommendations of the FCC as it pertains to that particular 

attorney. In the event an attorney objects to the FCC’s recommendation, a written objection setting 

forth with specificity the basis of the objection shall be submitted to the FCC within 14 days of 

being informed of the recommendation. It is the intent of the Court that the FCC bring to the Court 

a recommendation that has been well vetted and is agreed to by all involved to the fullest extent 

possible. 

 After full consideration of objections by counsel, if any, the FCC shall submit the final 

recommendation of fee allocation and cost reimbursement to the Court. At the appropriate time, 

the Court will determine the process for consideration of any objections to the final 

recommendation of fee allocation and cost reimbursement submitted to the Court by the FCC. The 

Court retains jurisdiction and authority as to the final decisions and awards and allocations of 

awards for common benefit fees and expenses. 

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The Court DIRECTS the Clerk to file a copy of this order in 2:12-md-2327 and it shall 

apply to each member related case previously transferred to, removed to, or filed in this district, 

which includes counsel in all member cases up to and including civil action number 2:16-cv00299. In cases subsequently filed in this district, a copy of the most recent pretrial order will be 

provided by the Clerk to counsel appearing in each new action at the time of filing of the complaint. 

In cases subsequently removed or transferred to this Court, a copy of the most recent pretrial order 

will be provided by the Clerk to counsel appearing in each new action upon removal or transfer. It 

shall be the responsibility of the parties to review and abide by all pretrial orders previously entered 

by the Court. The orders may be accessed through the CM/ECF system or the Court’s website at 

www.wvsd.uscourts.gov. 

 ENTER: January 15, 2016 

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