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My impressions of frequently testifying expert witnesses hired by Plaintiffs - their strengths and weaknesses

Dr. Tom Margolis

   Dr. Thomas Margolis is used fairly frequently as a Plaintiff case specific expert. He is compassionate, passionate in stating his opinions, argumentative and will not let Defense counsel push him around during cross-examination.

   He has never used the mesh implants trans-vaginally, so he has no direct knowledge of implanting them. However, he has tried to excise and remove mesh many times where the mesh has sawed through the vaginas or other vaginal organs of his patients.

   Kline & Specter hired his son to work at its law firm, and his son is neither a lawyer nor a doctor.

His medical practice is based out of the San Francisco Bay area of California.

   Dr. Margolis earned his MD at the University of Kansas where he also completed his Obstetrics and Gynecology residency. He then completed a Pelvic Surgery fellowship at Emory University in Atlanta, Ga. where he held a faculty position as instructor.

   He founded and directed the Center for Pelvic Surgery/Urogynecology at the Women's Cancer Center of Northern California.

   In 2011, the FDA asked Dr. Margolis to testify. He said he paid for his own travel and lodging to Washington, DC, where he urged the FDA to take “firm action” to save women from further suffering. His testimony said mesh “produces an unacceptably high and clearly avoidable plethora of life-ruining complications in women, and there are numerous safer surgical alternatives with superior success rates.”

   He is paid $3,000 per day of trial testimony. He is paid $400/hour to review medical records, depositions, expert reports and time spent with the attorneys who hired him.

He charges $500 for an independent medical exam (“IME”) on one patient.

   Over 10 years he earned $604,126.84 on pelvic mesh cases he worked on, and this sum was confirmed by his accountant.

This amount is a small percentage of his overall income, only represents 5% of his overall income.

   He goes on annual trips which he funds himself, to provide medical services to the poor in Uganda.

   He has spent $500,000 on these self-funded trips to Uganda over a period of 14 years.

   Defense counsel have argued financial motivations cause him to be biased but their own implanting doctors and experts have made great sums of money marketing the mesh products that are causing women such permanent, severe and frequent complications.

   Since handling pelvic mesh cases is generally done on a contingency fee basis, where the attorney representing the Plaintiff receives a percentage share of any recovery, the expenses of paying for the experts and all other expenses are eventually taken out of the Plaintiff’s share, although the attorney typically advances the expenses. If the litigation is not successful, and the Plaintiff receives no money then the attorney does not look to the Plaintiff to reimburse expenses.

Dr. Richard Bercik

   He is paid $800 per hour for his travel time and review time, $8,000 per day of trial testimony.

   He has been paid by Kline & Specter to testify against other mesh manufacturers including Boston Scientific, BARD and Mentor Worldwide, and also on medical malpractice cases. He has testified that the Prolift device used to repair POP (pelvic organ prolapse) and TVT and other mesh slings used to treat SUI (stress urinary incontinence) are defective.

   Over a 5-year period he was paid $391,511 working on 20-25 cases for Kline & Specter.

   It's a regular part of his business to treat complications from mesh.

   Dr. Bercik's patients have a 2-3% erosion rate, and an overall complication rate of about 5% - but the caveat is that these statistics are only based on patients with a 1-year follow-up.

Most patient complications occur after 1 year.

   Dr. Bercik emailed Sean Bush, an Ethicon sales representative, telling him he did not like a regional manager named Joseph Steele, said he wanted to be involved in research for the Prolift+M, said the company (Ethicon) did not value loyalty.

He wanted to do clinical trials for Prolift +M. Dr. Bercik thought some dissolvable mesh would leave less material in the body, have bigger pores, better tissue integration and less foreign body response.

   Ultrapro was available even before the Prolift was put on the market.

   Dr. Bercik is not anti-mesh, he still uses mesh for abdominal repairs and for treatment of SUI (stress urinary incontinence).

   Dr. Bercik thinks Prolift +M is also defective.

   Dr. Bercik has implanted the Prolift to treat pelvic organ prolapse in 350 patients. He did this from the fall of 2005 until late 2009 or early 2010. He stopped implanting the Prolift because he saw women were suffering from chronic severe pain they could not get rid of, and could no longer be sexually active. He decided to transition to safer devices.

   He still implants the TVT mesh sling in his patients that are suffering from stress urinary incontinence. It is put in a different location, inserted in different ways. There is more mesh implanted with the Prolift.

   The complications from the TVT mesh slings are not as severe and not as difficult to treat.

   He treats women suffering from mesh complications every week in his medical practice, treated at least 50 women suffering from complications from the Prolift.

   He has treated hundreds of women suffering erosions from all kinds of mesh products.

   He’s an impressive expert, has a B.S. degree from Georgetown, received his medical degree from Rutgers in Newark, NJ. Did his residency in New York, became a chief resident. From 2004 until the present he has worked for the Yale School of Medicine in Connecticut, he is a gynecologist treating women who suffer from pelvic floor disorders, including inability to control urine and fecal matter, he does reconstructive surgery and minimally invasive uro-gynecological surgery making a small incision, doing an endoscopy, placing a camera in the body.

   He does 4-5 surgeries per week treating women who suffer from pelvic organ prolapse.

   He has been deposed 30-35 times with respect to Polypropylene mesh, prepared over 50 expert reports on Polypropylene mesh.

   He comes across as a very credible, impressive and accomplished expert witness. He has the advantage of having implanted many Prolifts in women, seen the damage they have caused and has since switched to safer devices and procedures. Working for Yale Medical School for many years is impressive. He is calm, speaks well, and does not allow defense cross examination to rattle his demeanor.

Dr. Richard Bercik

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