Bard Hernia Mesh Lawsuits Consolidated For Pretrial Proceedings in Federal MDL

The U.S. Judicial Panel on Multidistrict Litigation (JPML) has decided to consolidate all hernia mesh lawsuits filed nationwide against C.R. Bard, centralizing the cases before one judge for coordinated pretrial proceedings as part of a federal MDL, or multidistrict litigation.

In an order (PDF) issued August 2, a group of 53 Bard hernia mesh lawsuits currently pending in 21 federal district courts were identified were transferred to U.S. District Judge Edmund A. Sargus in the Southern District of Ohio for coordinated discovery and management. In addition, the panel indicated that there are currently another 69 potentially related actions pending, which will soon be transferred.

The lawsuits involve problems with Bard Ventralex, Bard Perfix, Bard Composix and other polypropylene hernia patch products sold in recent years. Plaintiffs raise similar questions of fact and law, alleging that design defects make the mesh prone to fail and result in the need for revision surgery within a few years.

As lawyers continue to review potential cases for individuals who have experienced hernia mesh complications in recent years, the size and scope of the Bard litigation is expected to continue to increase in the coming months and years, and it is ultimately expected that several thousand cases may be centralized before Judge Sargus.

Each of the complaints raise similar allegations that the design of the mesh products were unreasonably dangerous and defective, making them prone to fail and result in the need for risky revision surgery within a few years after the original hernia repair.

On April 10, a group of plaintiffs filed a motion to centralize the Bard hernia mesh lawsuits before a single judge in the Southern District of Ohio, as part of an MDL, or multidistrict litigation.

In complex product liability litigation where similar questions of fact and law are raised in complaints filed in various different U.S. District Courts, it is common for the JPML to transfer the cases to one judge for coordinated discovery into common issues, to avoid conflicting pretrial schedules from different courts and to serve the convenience of common witnesses, parties and the judicial system.

C.R. Bard and Davol indicated in June that it supports centralization of the hernia mesh cases, so long as any MDL includes all lawsuits over their polypropylene mesh products, including the previously recalled Kugel hernia patch, which plaintiffs argued should be excluded from this new MDL.

However, the JPML declined to address the Composix Kugel (CK) mesh cases in their decision.

“Whether to include the CK Patch cases in centralized proceedings is a question not currently before the Panel, as none of the cases on the motion involve the CK Patch,” the transfer order states. “We will address this question in due course through the conditional transfer order process.”

The panel ordered all of the cases centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio.

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.