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The U.S. District Judge presiding over all federal Atrium C-Qur hernia mesh lawsuits has called for the parties to narrow down the list of potential bellwether cases to just two cases by the end of the month, which will be prepared for early trial dates later this year.
There are currently about 1,700 product liability lawsuits filed against Atrium Medical throughout the federal court system, each involving similar allegations that plaintiffs experienced problems with a hernia mesh system known as C-Qur (pronounced “secure”), which featured a unique design involving polypropylene patch with an an Omega-3 fatty acid (O3FA) gel coating.
While this design was intended to reduce scar tissue formation and promote fixation of the mesh to the abdominal wall, plaintiffs claim that the C-Qur patch actually increased the risk of an inflammatory response, bowel adhesions and other painful complications, often resulting in additional surgery.
Given similar questions of fact and law raised in the complaints brought throughout the federal court system, 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 the cases before U.S. District Judge Landya McCafferty in New Hampshire, for coordinating discovery, pretrial rulings and a “bellwether” process, where a group of representative claims have been prepared for trial to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the cases.
In July, the parties selected eight cases for a bellwether trial pool, and the first case was scheduled to begin on May 20, 2020. In a case management order (PDF) issued on December 17, Judge McCafferty called on the parties to further narrow that pool down to just two cases, using a process the parties themselves have already agreed upon.
First, each party will be allowed to strike one case from previously selected pool of eight cases, leaving six. Then each side will select one of the remaining case by January 31, which will then be set for the first or second bellwether trial.
Judge McCafferty stipulated that the first case to go to trial should involve a single plaintiff, and parties should attempt to reach an agreement on what that first case will be, the manner of the trial and the timing of the second trial. They must submit a report to the court on those details by February 7. Failing an agreement between the parties, the court will make a selection and resolve any disagreements by February 28.
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.