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As the U.S. Judicial Panel on Multidistrict Litigation (JPML) considers whether to consolidate all hernia mesh lawsuits filed over problems with Ethicon Physiomesh, the manufacturer argues that the claims will be too individualized to warrant centralization before one judge for coordinated pretrial proceedings.
Johnson & Johnson’s Ethicon subsidiary filed a response (PDF) last week, after a group of plaintiffs asked that all cases pending in U.S. District Courts nationwide be transferred to one judge to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and to serve the convenience of the parties, witnesses and the courts.
There are currently several dozen Ethicon Physiomesh lawsuits pending throughout the federal court system, each involving similar allegations that problems with the design of the hernia patch caused individuals to suffer painful and debilitating complications, often resulting in the need for multiple surgical procedures to remove the mesh after it failed.
Ethicon Physiomesh is a type of hernia patch introduced in March 2010, which has been widely used during hernia repair surgery in recent years. However, the product has been plagued by reports of complications, including adhesions, perforations, infections, mesh erosion and the need for hernia revision surgery.
After failing to identify the cause of these hernia repair complications, the manufacturer decided to remove the product from the market worldwide in May 2016.
The Ethicon hernia mesh recall was classified as a “market withdrawal” in the United States, but all hospitals were asked to return unused implants and the manufacturer does not intend to return the product to the market.
As a growing number of complaints continue to be filed by individuals nationwide, a group of plaintiffs filed a motion with the U.S. JPML in March, seek to centralize and coordinate the hernia Physiomesh lawsuits.
In the response filed last week, the manufacturer attempts to argue that each of the cases will involve individualized facts, citing a wide range of different hernia mesh injuries reported among the plaintiffs.
“Here, individualized issues for each plaintiff will eclipse any purported common ones, making an MDL ineffective at narrowing claims and issues,” the brief states. “Although Plaintiffs may point to hernia recurrence as the common injury that binds these cases together, a closer look at the complaints shows a wide variety of alleged injuries, such as abdominal abscesses and intestinal fistula, bowel puncture, erosion and bowel resection, bowel adhesions, fistula and infection, and recurrent inguinal hernia.”
Ethicon also argues that the creation of a Physiomesh MDL will result in numerous lawsuits to be filed that have no merit, in an effort to force the company to reach a hernia mesh settlement.
In complex product liability litigation, where a large number of separate claims are filed throughout the federal court system involving similar damages caused by a medical device or medication, it is common for the U.S. JPML to centralize the cases for discovery and bellwether trials.
The U.S. JPML is scheduled to consider oral arguments on the motion during an upcoming session set for May 25, at the John H. Wood, Jr. U.S. Courthouse in San Antonio, Texas.