Adam Slater. (Photo: Carmen Natale/ALM)

In its appeal over a $6 million fee award for its work on transvaginal mesh lawsuits, Mazie Slater Katz & Freeman has lodged a new weapon: a 2016 email purportedly promising the New Jersey firm a significant role in the allocation of fees.

The email is the latest salvo in Mazie Slater's fight against the multidistrict litigation's fee and cost committee (FCC), which has urged the U.S. Court of Appeals for the Fourth Circuit to dismiss its appeal. The firm has accused members of the fee and cost committee of self-dealing and padding their bills in the allocation of $550 million in common benefit fees.

Mazie Slater attached the email in its opposition, filed Monday, to the fee and cost committee's motion to dismiss. In the email, Henry Garrard of Blasingame, Burch, Garrard & Ashley in Athens, Georgia, who is chairman of the fee and cost committee, told Mazie Slater partner Adam Slater that the court envisioned him as the "unofficial New Jersey liaison" who would be "invited frequently to participate where appropriate."

Only, that didn't happen, according to Slater.

"The FCC failed to fulfill its agreement to allow Mr. Slater to serve as the unofficial New Jersey liaison to the FCC, shutting Mr. Slater out of the process rather than allowing him to attend frequently, as directed by the district court and agreed to by the FCC," Slater wrote. "They deliberately excluded Mr. Slater from the process despite the agreement to involve him, because they knew his presence would have served as a potent check on the FCC's rampant self-dealing."

Raymond Franks, of Bailey & Glasser in Charleston, West Virginia, a lawyer for the fee and cost committee, declined to comment.

Mazie Slater's appeal threatens to halt the first payouts to 94 law firms expecting to receive common benefit fees following U.S. District Judge Joseph Goodwin of the Southern District of West Virginia's July 25 allocation order.

The firm, based in Roseland, New Jersey, is one of several that objected to fees, many focused on the work done on one of the first mesh trials in the nation, in New Jersey's Atlantic County Superior Court, where defendant Johnson & Johnson lost an $11 million verdict in 2013.

On Monday, the Fourth Circuit dismissed the appeals of two other firms, New York's Bernstein Liebhard and Cleveland-based Anderson Law Offices, after the fee committee cited a 2012 court order requiring firms to waive their right to appeal once they accepted fee awards. Although neither dismissal order cited the panel's reasons, the Fourth Circuit dismissed a similar appeal June 14 after finding that another objecting firm, Kline & Specter, had waived its right to appeal under that order.

"This court's decision in the K&S appeal is now the law of the case, and it is dispositive of Mazie Slater's attempted appeal," wrote Franks, in moving to dismiss Mazie Slater's appeal.

But Slater, in Monday's filing, said his firm "stands in a unique position" from the other objectors because he did not sign the 2012 fee order and was governed, instead, by the "stand-alone agreement" with the fee and cost committee that followed the 2016 email. His agreement, he claimed, did not contain an appeal waiver and resulted from a conversation between Goodwin and Judge Brian Martinotti, then on the Bergen County Superior Court, directing Garrard to give Slater a role on the fee and cost committee.

Mazie Slater, in Monday's filing, continued to cite remarks made by Daniel Stack, a retired judge on the Madison County, Illinois, Circuit Court, appointed as an "external review specialist" to examine the fee allocation process. Slack told Slater and another firm partner, David Mazie, that plaintiffs attorney Bryan Aylstock had pressured Garrard for $10 million more in fees to his firm, Aylstock, Witkin, Kreis & Overholtz in Pensacola, Florida, according to Monday's filing.

Aylstock Witkin eventually received more than $27 million in common benefit fees.

(Garrard has fired back, calling the accusations false and Mazie Slater's timekeeping records "largely indecipherable.")

Stack, who issued his report and recommendation March 12, also was a special master appointed to dole out $78 million in fees tied to lawsuits brought against Syngenta over genetically modified corn. On Aug. 19, U.S. District Chief Judge Nancy Rosenstengel of the Southern District of Illinois criticized Stack's report and recommendation as having "structural and procedural flaws."

She then slashed $23.4 million allocated to Houston's Clark, Love & Hutson and two other firms. Stack had awarded those firms $61.6 million, or about 79% of the total fees in Illinois—an amount Rosenstengel called "grossly excessive." Clark Love is set to receive $45 million in fees in the mesh litigation, over which it has been sued for malpractice, and its managing partner, Clayton Clark, is a member of the fee and cost committee.

"There, the district judge displayed independent, objective oversight and invalidated and reduced by tens of millions of dollars an allocation by the same special master as here, Hon. Daniel Stack, awarded in large part to one of the leaders of this FCC, Clayton Clark," Slater wrote of the Syngenta case. "The fact that the same special master awarded tens of millions of dollars to the same attorney, for work performed in two separate MDLs during the same time period, presents yet another severe conflict of interest compromising the integrity of the process, and raises obvious and disturbing questions which the district court completely ignored."