Entering Mass Torts

Long-time shareholder of preeminent Georgia firm provides insight on how to pursue and build a plaintiffs’ mass tort practice.

This is the second installment of our new monthly series. Read what he had to say...

In 1989, when Tom Rogers first became a shareholder and head of the business practice at Blasingame Burch Garrard Ashley, P.C. (BBGA), the Athens-based firm was involved in insurance and mass tort defense, business and real estate. With the loss of a major asbestos client in the early 2000s the firm underwent a massive transformation—shifting its defense-sided practice to plaintiffs’ litigation. Now, in 2016, BBGA has garnered national recognition as an elite plaintiffs’ mass tort firm due to its extensive involvement, knowledge and leadership role in resolving thousand of cases involving transvaginal mesh products for hundreds of millions of dollars.

How did your firm end up involved in plaintiffs’ mass tort litigation?

Henry Garrard started out with some local transvaginal mesh clients in 2006 and then began building up a group of cases. At that point, he was about the only attorney pursuing a products liability claim for mesh, but was only seeking clients against only one manufacturer. He started pursuing those cases—I think about 100—and four went to trial in 2010. During the second week of trial, an agreement was reached whereby all 100 cases were settled.

After those cases were resolved, that is when we really started getting into cases against multiple mesh manufacturers.

What impact did handling mass tort cases have on your firm?

When we got involved in mesh cases with multiple products and multiple manufacturers, we had to greatlyincrease our number of employees to deal with case medical records, multiple expert witnesses and clients—all of which involved a great deal of time and expense.

From 2010 to 2015, our number of employees, including lawyers, went from about 50-55 to 110-120, so pretty much double. We had five shareholders working on TVM, and then hired some contract attorneys, a couple of associates, paralegals and nurses to work on the cases.

But, it all had to be done if we wanted to handle these cases and handle them in the right way.

Did you take on any additional financing because of the mesh litigation?

Yes, we needed funding to pay for our increased number of employees, and to ensure that we could retain and keep the expert witnesses that we had been talking to because they were entitled to be paid for their work and we wanted to make sure that they would be paid.

In 2013, I cold-called Megan Payne from Counsel Financial. That was the first time we got into any sort of financing other than straight bank financing. We have not done any other financing with anyone else since then. I’ve been very gratified to have worked with Counsel Financial because they have been so accommodating and so easy to deal with.

What would you say was most important to your firm’s success in the mesh litigation?

The most important thing to our success was Henry Garrard. No question about that. Everyone in our firm would say the same thing. He has just done a phenomenal job, and our other shareholders working on the TVM cases also have done a stellar job.

When did you join BBGA?

I was in a small four-person firm that merged into BBGA in 1989. BBGA was formed five years prior by Gary Blasingame, Dave Burch, Henry Garrard, Clay Bryant (who has since retired), Steve Heath and Andrew Hill. The unusual thing about BBGA at that time was that we were engaged in some mass tort litigation, but were engaged in it from the defense side.

In your opinion, what was the biggest change your firm underwent since you joined in 1989?

In, I think, the year 2000, our biggest asbestos client filed Chapter 11. It did not terminate all of our asbestos representation, but it certainly did limit it. We had to turn around and start reinventing ourselves, and we made the decision to reinvent ourselves as a plaintiffs’ firm.

It was a 180-degree change. I guess fortunately for us, it has worked.

What were some of the difficulties you faced when reinventing your firm?

Number one, we went from hourly billing to contingent-fee billing, which can be feast or famine. Plaintiffs’ cases take a while to collect money on. So, we had to wait, from a cash flow standpoint, for over a year before we really started achieving results from our plaintiffs’ cases. 

What has been the biggest challenge you have faced since being an owner of the firm?

Making sure that our business model continues to be a viable model. Our mesh litigation is now moving toward the end, so we are talking about what areas of the plaintiffs’ practice we want to get into next. We want to make sure that the areas that we get into are productive and will bring a positive outcome to people who have been injured.

Where do you see the firm in the next five years?

We will be bigger than we are now and engaged in more than one area of plaintiffs’ litigation. For instance, right now we have all been so tied up in TVM, but I see a more diverse practice in the future. We still will be in mass torts, but hopefully we can be more efficient in deploying our resources. When we first started out we felt like we had to cover each and every base—and we pretty much did. Now that we are more familiar with the process, we found there are things we can do differently, i.e. maybe one group of attorneys in another firm can pursue one area of a litigation, and we can pursue another, and achieve some economies that way.

As for the business litigation and business practice, it changes all the time because of the economy, but I still see the business practice as being a very important part of the firm.

Outside of law, what interests do you have?

My family. I have two children, ages 31 and 29, and my first grandchild was born in May.

I also like fishing and hunting, specifically wing shooting, which is the hunting of quail, pheasant and ducks. I go out with my yellow lab. He’s well trained, a good hunter and a lot of fun. I actually tried to take him fishing with me before, but every time I made a cast he wanted to go out and get it!

I also play golf. I quit playing when I got really busy, but I’m getting back into it now. And of course, I enjoy University of Georgia sports.

What do you believe has lead to your firm’s success in general?

I think one thing is the shareholders, even the ones that have left. We all have great respect for each other. Everybody here is a good lawyer, honest, hard working, and really cares about the firm.

Another thing is our whole philosophy as a firm that runs from top to bottom—if we do not provide value to you, then we do not need to be representing you. We always try to put the client’s interest first. We would rather decline a representation then to undertake one just to make money.

What do you enjoy most about being an owner at BBGA?

I feel like we have an unusual situation in our firm in that all of our shareholders like each other. We are not only partners, but we are friends. We can depend on one another and we all trust one another. That has been, to me, a great luxury in practicing law at this firm.

This question and answer article is the first in a series of interviews with leading plaintiffs’attorneys. If you are interested in reading more of these interviews please click here, or if you would like to leave a comment on specific issues or topics you want covered fill out below.

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