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Atrium C-Qur Hernia Mesh Lawsuits Cleared to Proceed Over Statute of Limitations Challenges

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A federal judge has cleared the way for two product liability lawsuit over problems with Atrium C-Qur hernia mesh to proceed, rejecting efforts by the manufacture to have the cases dismissed.

Atrium currently faces about 1,500 hernia mesh lawsuits pending throughout the federal court system, each involving similar allegations C-Qur (pronounced “secure”) surgical repair products were defectively designed and unreasonably dangerous, increasing the risk of complications and infection, often resulting in the need for additional surgery to remove or replace the mesh.

The Atrium C-Qur mesh was introduced in March 2006, and was widely used by surgeons throughout the U.S. for several years, featuring a unique design involving polypropylene mesh with an Omega-3 fatty acid (O3FA) gel coating. While this was designed to reduce scar tissue formation and promote fixation of the mesh to the abdominal wall, the C-Qur patch has been linked to a large number of reported problems, including inflammatory responses, bowel adhesions and other painful complications.

Given similar questions of fact and law raised in the complaints, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established consolidated pretrial proceedings for all Atrium C-Qur hernia mesh cases in December 2016, centralizing complaints filed in U.S. District Courts nationwide in New Hampshire, where U.S. District Judge Landya McCafferty is coordinating discovery, pretrial rulings and overseeing a “bellwether” process for a group of representative claims that will be the first to go before juries.

In court orders issued earlier this month, Judge McCafferty denied motions to dismiss filed in bellwether claims brought by Felicia Blackwood (PDF) and Joseph Shumaker (PDF), rejecting arguments made by Atrium that the claims were time-barred under the three year statute of limitations in New Hampshire.

Statute of limitations laws, which vary by state, require that legal actions be filed within a certain amount of time between when an individual knew or reasonably could have discovered that a product caused an injury. In both cases, Atrium claimed that the plaintiffs waited too long between discovering their injuries and filing a lawsuit. However, Judge McCafferty disagreed in both cases, indicating that it is reasonable to assume the plaintiffs did not learn design problems with the hernia mesh were the cause of their injuries until much later.

In Blackwood’s case, she went to the hospital with abdominal pain in February 2013, which Atrium argued resulted in a statute of limitations deadline that required her case be filed by February 2016. However, Blackwood maintains that she did not discover the cause of her pain until September 2013, during a procedure where the hernia patch was surgically removed. Judge McCafferty determined that her statute of limitations would not expire until August 2016, making the filing of her lawsuit timely.

In Shumaker’s case, the plaintiff argued that although the mesh was removed more than three years before his lawsuit was filed, additional time should be allowed under the statute of limitations, since Atrium concealed problems with mesh design and mislead physicians, preventing him and his doctors from discovering that problems with the mesh caused the failure.

“Taking Shumaker’s allegations in the light most favorable to him and resolving reasonable inferences in his favor, Shumaker’s allegations are sufficient to preclude dismissal of his product liability claims as time-barred at this stage of the litigation,” Judge McCafferty wrote. “If, as the case develops through discovery, defendants find facts that support the statute-of-limitations defense, they may raise that defense at an appropriate time, such as in a motion for summary judgment.”

Earlier this year, Judge McCafferty began allowing direct filing of claims to the Atrium C-Qur MDL, and began the process of preparing a small group of cases for early bellwether trials.

While the outcomes of these “bellwether” trials will not be binding on other claims, the process is designed to facilitate potential hernia mesh settlements that may be necessary to avoid the need for hundreds of individual trials in various U.S. District Courts nationwide following the coordinated MDL proceedings.

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