Each hernia mesh claim is filed as an individual lawsuit, not as part of a class action. But as often happens with mass torts, logistics and efficiency dictate that most cases filed in federal court will be filed and managed as part of a multi-district litigation (MDL).
Many thousands of hernia mesh lawsuits are pending across the country. More than 8,000 cases filed in the federal courts have been centralized for discovery and pretrial purposes into three MDLs.
Each hernia mesh MDL involves different products and manufacturers:
There are also two major consolidated hernia mesh proceedings in state courts—a Multi-County Litigation in Atlantic County, New Jersey, against Ethicon and thousands of consolidated cases pending in the Superior Court for Providence, Rhode Island, against C.R. Bard & Davol.
Despite delays caused when the federal courts and many states shut down most operations due to the COVID-19 pandemic, the Atrium MDL and the Bard/Davol MDL both have cases scheduled to go to bellwether trials in the 2020. The Rhode Island court has also scheduled a bellwether trial for 2020.
The Atrium MDL was the first federal MDL established to handle cases about defective hernia mesh. By late 2016, thirteen lawsuits were pending against the Atrium Medical Corporation in seven district courts. The plaintiffs in those cases claimed Atrium had defectively designed, manufactured, and labeled its C-Qur hernia mesh products and that those products had caused an allergic or inflammatory response that caused severe postsurgical complications, including bowel obstructions, hematoma, seromas, and fistulas.
|Litigation||Atrium Medical Corporation’s C-QUR™ Hernia Mesh Products Liability Litigation|
|District||District of New Hampshire|
|Judge Landya B. McAfferty|
On December 8, 2016, the Judicial Panel on Multidistrict Litigation (JPML) centralized the existing federal hernia mesh cases against Atrium for all pretrial purposes. The JPML Order transferred the cases to the U.S. District Court for the District of New Hampshire (Atrium’s home district) and assigned the MDL to Chief Judge Landya B. McAfferty:
In Re: Atrium Medical Corp. C-Qur Mesh Products Liability Litigation, 16-md-2753-LM (D. N.H.)
The Atrium MDL now involves just over 2,100 separate lawsuits. The MDL has moved through the general discovery phase, and the court is preparing for the bellwether trials. On December 17, 2019, Judge McAfferty issued an Order establishing the procedures for selecting the first two cases to be tried and scheduling the first bellwether trial to begin on May 20, 2020. On February 6, 2020, the parties jointly moved to revise the pretrial schedule and push the first bellwether trial date back to September 16, 2020.
Atrium has since moved to extend all pretrial deadlines and push that trial back to January 2021, citing the effects of the COVID-19 pandemic on the availability of some medical and regulatory experts and their ability to prepare for trial. Judge McAfferty extended some interim deadlines but has not moved the trial date. The court will soon identify which individual case will be the first bellwether trial.
The Ethicon MDL now includes nearly 3,000 separate cases claiming that Ethicon, Inc. (the manufacturer) and its parent company Johnson & Johnson defectively designed, manufactured, and labeled its PHYSIOMESH Flexible Composite Mesh (“the Physiomesh”)1, which then injured the plaintiffs after their surgeries.
|Litigation||Ethicon’s PHYSIOMESH Flexible Products Liability Litagation|
|District||Northern District of Georgia|
|Assigned Judge||Judge Richard W. Story|
By late Spring 2017, more than 70 lawsuits were pending against Ethicon in 36 federal district courts claiming the Physiomesh had injured the plaintiffs. Those cases alleged that defects in the product could and often did lead to severe complications, including hernias through the mesh, recurring hernias, ruptured hernias, and the mesh deforming inside the abdomen (which can be very bad for the surrounding tissue and organs). More specifically, many cases allege that the multilayer coating prevented the mesh from being adequately incorporated into the body and that the polypropylene mesh portion could not withstand normal abdominal forces.
On June 2, 2017, the Judicial Panel on Multidistrict Litigation centralized the federal Physiomesh cases into an MDL for pretrial proceedings. The JPML order transferred the cases to the Northern District of Georgia and assigned the MDL to Judge Richard W. Story:
In Re: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation, MDL No. 2782 (N.D. Ga.)
The Ethicon MDL has moved through the general discovery phase; the court and parties are preparing to choose the individual cases that will be the Ethicon bellwether trials. Judge Story has ordered that the first bellwether trial will begin on November 2, 2020, and the second bellwether trial on February 22, 2021.
Roughly a year later, on July 17, 2018, the Supreme Court of New Jersey (Ethicon’s home state) designated all cases filed in state court alleging injury from Physiomesh part of a “multi-county litigation.” (This state court procedure is the New Jersey version of an MDL). The Court assigned the Physiomesh MCL to Atlantic County, New Jersey, for centralized case management, and it is currently assigned to Superior Court Judge John C. Porto. No trial dates have been set.
The Bard/Davol MDL includes roughly 3,600 cases claiming that many polypropylene hernia mesh products made and sold by C.R. Bard (now Bard Medical) and its wholly-owned subsidiary Davol, Inc., (or Bard Davol) were defectively designed, manufactured, and labeled and then injured the plaintiffs after their surgeries.
|Litigation||C.R. Bard & Davol Polyproplyene Hernia Mesh Products Liability Litgation|
|District||Southern District of Ohio|
|Assigned Judge||Judge Edmund A. Sargus|
By mid-2018 at least 53 hernia mesh lawsuits were pending against Bard and Davol in 21 federal district courts (and at least 69 potential “tag-along” cases had been identified) claiming injuries from one of their many polypropylene hernia mesh products. Those cases alleged that, due at least in part to the material used, defendants’ polypropylene hernia mesh products could and often did cause severe complications when implanted, including adhesions, damage to organs, inflammatory and allergic responses, immune system rejection of the mesh as a foreign body, migrating mesh, and infections.
On August 2, 2018, the Judicial Panel on Multidistrict Litigation centralized the cases against the many Bard/Davol polypropylene hernia mesh products into an MDL for coordinated or consolidated pretrial proceedings. The JPML’s order transferred the cases to the Southern District of Ohio and assigned them to Judge Edmund A. Sargus:
In Re: Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, 2:18-md-2846 (S.D. Oh.)
The long list of polypropylene Bard/Davol hernia mesh products at issue in the MDL includes at least the following products:
Earlier this year, Judge Sargus selected the first three representative bellwether cases from the Bard/Davol MDL and scheduled their trials, although the COVID-19 pandemic has pushed the schedule back. On January 24, 2020, the Court issued an Order identifying the three initial bellwether trial cases:
Two months later, on March 24, 2020, the court issued orders rescheduling the first two bellwether trials. The Johns case is now set to begin on July 13, 2020, while Milanesi is set to go to trial on September 29, 2020. The court will likely reschedule the third bellwether as the trial date approaches. The defendants will be allowed to select the fourth bellwether case if necessary.
Beyond the ongoing federal hernia mesh MDL, the Superior Court for Providence, Rhode Island is managing a consolidated state proceeding involving thousands of cases filed against Bard/Davol polypropylene hernia mesh:
IN RE: DAVOL/ C.R. BARD HERNIA MESH, Case No. PC-2017-1929, (Providence/Bristol Cty. Sup. Ct).
In May 2017, the Providence trial court—sitting in the city where Davol, Inc., was founded in 1874 and still Bard’s hometown—established “a multi-case management coordinated proceeding for all subsequent filings alleging personal injuries from Davol /C.R. Bard hernia mesh products.” These state cases largely involve the Ventralex and Composix E/X products. The first bellwether trial in the state litigation reportedly has been scheduled for 2020 and will involve the Ventralex product.
Plaintiffs may not usually be eager to do legal battle on a defendant’s home ground, but they know the court has will have jurisdiction. And the Rhode Island courts offer plaintiffs another advantage. The state proceedings seem to have exploded in size because the Rhode Island courts apply the “discovery rule” to personal injury cases involving dangerous drugs and medical devices. Under that rule, Rhode Island’s standard three-year statute of limitations does not begin to run until the plaintiff “knew or reasonably should have known” of their injury. Rhode Island also has no statute of repose to cut off a plaintiff’s ability to bring a claim. As a result, many injured plaintiffs who may have missed the deadline to file suit in their home states have filed in Rhode Island instead.
Individual lawsuits have also been filed against Covidien (now Medtronic Minimally Invasive Therapies), its parent company Medtronic PLC, and other related entities. There are currently no consolidated litigations involving Covidien products. However, the number of cases (just over 150 state and federal cases) has grown enough that Covidien recently requested the Joint Panel on Multidistrict Litigation centralize all federal cases against it into another MDL and transfer those cases to the Southern District of New York. Covidien’s motion will likely be heard at the JPML’s next scheduled hearing in Boston on July 30, 2020.