2020 promises to be a busy and eventful year in product liability litigation against hernia mesh manufacturers. There are several bellwether cases in multidistrict litigation that are scheduled to begin trial in 2020.
The defendants are fighting these cases and have not settled them or conceded any type of liability. These bellwether cases are crucial because there is a large number of potential cases yet to be filed in hernia mesh lawsuits. Millions of surgeries have relied upon the implant, and the failure rate is estimated as high as 12-30%. Moreover, many of the plaintiffs do not realize until years after the surgery that they were injured because some of the mesh implants can take time to erode.
Bellweather Hernia Lawsuit Trails: An Indication of What is to Come
In the event that plaintiffs win any of the bellwether trials, it is likely that there will be a large increase in hernia mesh lawsuits in the U.S. There is little legal track record of these cases thus far as many of them have been filed since 2017 and have not yet gone to trial. Many of the cases against the hernia mesh manufacturers allege some or all of the following in their lawsuit:
Hernia mesh products are defective because they tend to shrink, shrivel and migrate, causing damage to internal organs. Hernia mesh products are defective because they tend to fail, causing the need for additional surgeries. These products are defective because patients can suffer infections causing the need to remove the mesh. Hernia mesh manufacturers knew of the dangers of these products but failed to warn the public.
There are four major makers of hernia mesh in the U.S. They are C.R. Bard, Johnson & Johnson’s Ethicon subsidiary, Atrium Medical Corp. and Medtronic’s Covidien subsidiary. Below is an update where each of the series of lawsuits against the four manufacturers stands.
Bard Hernia Mesh Lawsuits
There are numerous litigation tracks involving C.R. Bard hernia mesh products. Many of them appeared to be making progress before trial before the COVID-19 crisis resulted in the postponement of trials and court proceedings. We still expect there to be several key Bard hernia mesh trials in 2020.
First, there is state litigation that is based in Rhode Island, and there are numerous cases there. In this court, there are cases about Ventralex and Composix E/X. The first case that will be heard involves Ventralex. There are currently thousands of cases pending in Rhode Island state court, which has become the state center of these legal actions. The first case to be heard is the bellwether case in the litigation
Further, there is also federal multidistrict litigation in C.R. Bard hernia mesh cases. The Bard multidistrict case is based in the Southern District of Ohio. As of the status conference in the case that was held in January 2020, there were over 5,000 cases. The court filing indicated that that is between 300-400 new cases being filed each month. The filing from the status conference also indicated that the parties were going to be filing Daubert motions regarding expert witnesses and that bellwether trials would soon be selected. There are three bellwether cases that are scheduled to go to trial in 2020, although the timing of these is uncertain right now.
Atrium Medical Corp. Hernia Mesh Lawsuits
Atrium Medical Corp. manufactures C-QUR, Vitamesh, Proloop, Prolite and Prolite Ultra brands of hernia mesh. All of the lawsuits relating to these brands have been consolidated in one multi-district litigation. This litigation is currently pending in the District of New Hampshire. As of this writing, there are 1,975 cases that are a part of this MDL. The bellwether cases have been selected and the trial was scheduled for May 2020. There is no word on whether the trial will still begin as scheduled.
In the past, the FDA had taken several legal actions against the maker of this product. There were injunctions against the manufacturer for failure to address complaints regarding the product as well as a Class II recall. The lawsuits in part claim that the manufacturer of the product failed to warn consumers of dangerous side effects of the product.
The defendant attempted to file a motion to dismiss the bellwether cases in the litigation. Atrium claimed that the bellwether cases were not filed in time for the statute of limitations. The judge denied the motions for dismissal on the grounds, taking away from Atrium a tactic that it intended to use in order to combat the wave of lawsuits that it faced.
Ethicon Hernia Mesh Lawsuits
Ethicon is a subsidiary of Johnson & Johnson and is one of the largest makers of hernia meshes in the country. Ethicon is facing thousands of lawsuits for allegedly defective hernia mesh. Currently, there is multi-district litigation that is located in federal court in Georgia. As of the March 2020 statistical update, there are 2,664 cases that are currently a part of this litigation. The first bellwether trial has been selected and the trial is currently scheduled to begin in June 2020.
In addition, there are numerous Ethicon cases that have been filed in state court under state law claims. At the end of 2019, there were 107 cases filed in New Jersey, which is where Johnson & Johnson is based. The plaintiffs have tried several times to consolidate the lawsuits in multi-county litigation. The New Jersey Supreme Court has denied two different motions to consolidate these cases. The plaintiffs have a third motion pending in front of the Court.
Johnson & Johnson did have one recent legal victory in hernia mesh litigation. In March 2020, a New Jersey appeals court upheld the summary judgment that was granted by a lower court in one case against Ethicon. However, the dismissal was not a precedent for other Ethicon cases that are pending.
The reason for this specific dismissal was that the plaintiff failed to show that Johnson & Johnson was the manufacturer of the hernia mesh. The surgeon’s notes referred to “Prolene Mesh,” but the court held that it was a generic reference to hernia mesh in general as opposed to a specific reference to Johnson & Johnson.
Covidien Hernia Mesh Lawsuits
Covidien is the brand of hernia mesh that is manufactured by Medtronic. Covidien has three primary brands of hernia mesh. They are Parietex Surgical Mesh, Parietex Composite Mesh and Parietex ProGrip Mesh.
There is currently no multidistrict litigation in the Covidien case so there is no readily available number of cases that have been filed against the manufacturer. In addition, there is no one uniform trial schedule.
There are cases that are still being filed against Covidien. Most of these cases are being filed in state court using state law claims. For example, there was a new lawsuit filed by a California man in state court in August 2019. There have been no recent settlements or verdicts to report.
If you have had a hernia mesh surgery and are experiencing pain, make sure to do the following:
See a doctor immediately to get treatment for your health issues. This is important because the statute of limitations begins to run when you knew or should have known about the possibility that you have been injured. Hernia mesh manufacturers have been very aggressive in trying to find any way that they can to get cases thrown out of court and dismissed.
Make sure to document everything about your health condition and the damages that you have suffered.
Take steps to verify the exact type of hernia mesh that you received and the manufacturer of that product.