Bard Supports MDL Petition, If All Polypropylene Hernia Patch Lawsuits Are Included

C.R. Bard and Davol have filed responded to a recent motion to consolidate hernia patch lawsuits pending against the companies in the federal court system, indicating that they support centralizing the litigation before one judge, as long as it includes all cases involving their polypropylene mesh products, including the previously recalled Composix Kugel hernia patch.

There are currently nearly 100 Bard hernia mesh lawsuits pending in U.S. District Courts nationwide, each raising similar questions that the defective and unreasonably dangerous design of polypropylene patch products caused plaintiffs to suffer adhesions, infections, recurring hernias, and the need to undergo revision surgery to have the patches removed once they failed.

As hernia mesh injury lawyers continue to investigate and file claims over the coming months and years, it is widely expected that hundreds, if not thousands, of additional cases will be brought against Davol and Bard nationwide.

Last month, a number of plaintiffs filed a motion to transfer with the U.S. Judicial Panel on Multidistrict Litigation (JPML), calling for almost all Bard polypropylene hernia mesh claims be consolidated for pretrial proceedings in the U.S. District Court for the Southern District of Ohio. Given common questions of fact and law raised in the complaints, the process is designed to reduce duplicative discovery, avoid conflicting pretrial rulings from different judges and to serve the convenience of the witnesses, the parties and the courts.

On May 3, the manufacturers filed a response (PDF) to the request, agreeing that the litigation should be centralized before one judge for coordingated pretrial proceedings. However, the manufacturer indicated that the multidistrict litigation (MDL) should only be formed if it includes all Bard hernia mesh products containing polypropylene, including complaints involving the Composix Kugel (CK) Hernia Patch, which plaintiffs specifically excluded from their original motion. In addition, the defendants call for the cases to be consolidated in either New Jersey or southern New York, rather than the Southern District of Ohio.

The response notes that Kugel patch lawsuits were part of a previous MDL, but argued that should not prevent them from being part of this new one, if the JPML chooses to move forward with consolidation.

“To begin, the CK Patch was a hernia repair product made in part of polypropylene, just like all the other products that Moving Plaintiffs propose to make part of their suggested MDL. Moreover, although the CK Patch was the subject of a prior MDL, so were several other polypropylene hernia mesh products that the Moving Plaintiffs have proposed for inclusion in their new MDL,” the response states. “In fact, over one-half of the plaintiffs listed in this MDL Motion’s Schedule of Actions assert claims as to Bard hernia mesh products that were part of the prior MDL.”

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 760 Ethicon Physiomesh lawsuits and 30 Atrium C-Qur lawsuits pending in the federal court system, where they have been centralized before two separate judges for coordinated discovery.

The U.S. JPML is expected to schedule oral arguments for the motion to consolidate the Bard polypropylene hernia mesh litigation during an upcoming hearing set for either May 31 in Chicago or July 26 in Santa Fe, New Mexico.