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The U.S. District Judge presiding over all federal hernia mesh lawsuits filed against C.R. Bard has appointed a small group of plaintiffs’ lawyers to serve in various leadership roles in the recently established multidistrict litigation (MDL), involving claims brought by individuals nationwide who have experienced problems with various polypropylene mesh designs sold in recent years.
Hundreds of product liability lawsuits have been filed throughout the federal court system over complications with Bard Ventralex, Bard Perfix, Bard Composix and other polypropylene hernia patch products sold by C.R. Bard, each raising similar allegations that design defects make the mesh prone to fail and result in the need for revision surgery within a few years.
Given similar questions of fact and law raised in the complaints, the U.S. Judicial Panel on Multidistrict Litigation established consolidated pretrial proceedings for the Bard hernia mesh cases last month, centralizing cases filed nationwide before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, for coordinated discovery and management.
As hernia mesh lawyers continue to review and file potential cases for individuals who have experienced problems following a hernia repair in recent years, the size and scope of the litigation is expected to continue to grow, with many estimates suggesting that several thousands lawsuits will ultimately be centralized in the Bard hernia mesh MDL.
In a case management order (PDF) issued on September 19, Judge Sargus appointed two attorneys to serve as Plaintiffs’ Co-Lead Counsel, one Plaintiffs’ Liaison Counsel, four to serve on a Plaintiffs’ Executive Committee and eight additional attorneys to serve on a Plaintiff’s Steering Committee.
In complex medical device litigation, where a large group of cases present similar claims, it is common for the Court to appoint a group of lawyers to leadership roles to coordinate general discovery into common issues in the cases, argue motions before the court and take certain actions during the MDL proceedings that will benefit all plaintiffs. However, each individual plaintiff will still maintain their own attorney to handle case-specific issues and establish that their injuries were caused by defects associated with the Bard hernia mesh products.
As part of the pretrial proceedings, it is expected that Judge Sargus will establish a bellwether process, where a small group of Bard hernia mesh cases will be prepared for early trial dates to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation. If Bard hernia mesh settlements are not reached following the coordinated MDL proceedings, each case may ultimately be remanded back to the U.S. District Court where it was originally filed for an individual trial date in the future.
Hernia Mesh Litigation
In addition to Bard lawsuits, similar polypropylene hernia patch cases are being pursued over problems with the Atrium C-Qur patch and Ethicon Physiomesh, which have already been centralized as part of two separate multidistrict litigations (MDLs).
The Atrium C-Qur, pronounced “Secure”, was approved by the FDA in March 2006, featuring a polypropylene mesh with an outer coating of gel made from 3 fatty acids. However, this design has been linked to reports of severe infections, allergic reactions and other problems.
Ethicon Physiomesh was introduced in March 2010, featuring a unique, multilayered design that was intended to improve performance. However, amid a high number of failures, an Ethicon Physiomesh recall was issued in May 2016, removing the product from the market worldwide. While the action was classified as a “market withdrawal” in the United States, the manufacturer has indicated that it will not be returning the product to the market.
There are currently about 1,200 Ethicon Physiomesh lawsuits and 471 Atrium C-Qur lawsuits pending in the federal court system, where they have been centralized before two separate judges for coordinated discovery.