Nearly 6,000 Covidien Hernia Mesh Lawsuits Filed in Massachusetts State Court and Federal MDL

Plaintiffs object to a defense proposal to coordinate state and federal Covidien hernia mesh lawsuits, indicating defendants would give them less than a year to conduct corporate discovery.

In advance of a meeting this week before the U.S. District Judge recently appointed to preside over all federal Covidien hernia mesh lawsuits, the parties report that there are already nearly 6,000 complaints filed by individuals who have suffered injuries after receiving the hernia repair products, with most pending in Massachusetts state court.

Each of the lawsuits involve similar allegations, indicating that plaintiffs experienced complications after receiving defective polypropylene hernia mesh products sold in recent years, including Covidien Parietex, Covidien Symbotex and others.

Plaintiffs report that they have experienced severe abdominal pain, infections, organ perforations, erosion and other problems, often resulting in the need for a risky hernia revision surgery to remove the defective mesh from their bodies.

Given common questions of fact and law raised in complaints filed in U.S. District Courts nationwide, the U.S. Judicial Panel on Multidistrict Litigation decided to centralize theCovidien hernia mesh lawsuits in June 2022, transferring all cases to U.S. District Judge Patti B. Saris in the District Judge in Massachusetts, for coordinated discovery and a series of early trial dates.

According to recent filings in advance of a status conference held on October 25, the parties report that there are currently 170 lawsuits pending in the federal Covidien MDL (multidistrict litigation). However, there are also another 5,700 claims filed in Massachusetts state court, where the manufacturers’ headquarters are located.

Competing Discovery Plans for Covidien Hernia Mesh Claims

As part of the coordinated management of the litigation, Judge Saris has established a “bellwether” process, where a group of representative cases will be prepared for early trial dates to help the parties gauge the relative strengths and weaknesses of their claims, and how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.

On October 14, plaintiffs and defendants filed competing proposals regarding the schedule for preparing these bellwether cases in the MDL. The parties indicated they have agreed on a majority of issues regarding a proposed scheduling order, handling of electronically stored information (ESI) and a proposed confidentiality and protective order. However, the parties disagree on the deadline of completion of general corporate discovery for the initial bellwether cases, and coordination with the Massachusetts state court litigation.

In a proposal (PDF) submitted on October 14, plaintiffs called for discovery to be completed by April 8, 2024, and the defendants’ proposal (PDF) calls to be completed in less than a year; by September 30, 2023.

Plaintiffs indicate the proposal is not reasonable and that they have compromised on a number of factors in the proposals, but the defendants were being more intractable.

“Defendants did not share Plaintiffs’ compromising spirit but rather, in exchange for adopting Plantiffs’ reasonable date, Defendants proposed a draconian coordination procedure with the state court proceeding that would prejudice all plaintiffs in this MDL,” the plaintiffs’ state in their filing. “To be sure, the only question the Court needs to answer for the scheduling order CMO is whether Plaintiffs get less than a year to work-up a major MDL case for trial or, the more reasonable time frame of 18 months that Plaintiffs propose. This Court should allow the Plaintiffs 18 months to conduct discovery.”

Defendants claim coordinating the state and federal cases would prevent duplication, promote efficiency, and prevent witnesses from having to be deposed multiple times. The manufacturer points out that September 30, 2023 is the date previously chosen by a state court judge for the close of general corporate discovery in the Massachusetts Coordinated Proceeding.

While the outcomes of these bellwether trials will not be binding on other plaintiffs in the litigation, they may help drive the parties toward hernia mesh settlements that would avoid the need for hundreds of individual trials to be held.

At least three other hernia mesh MDLs were previously established for claims involving other polyethylene products sold by different companies, with more than 15,400 Bard hernia mesh lawsuits centralized in the Southern District of Ohio, another 3,600 Ethicon Physiomesh lawsuits centralized in the Northern District of Georgia and 3,251 Atrium C-Qur lawsuits centralized in the District of New Hampshire. Many of those claims settled before the first claims ever went before a jury.

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