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Consolidation of Covidien Hernia Mesh Cases Unnecessary, Some Plaintiffs Argue

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A panel of federal judges has agreed to hear oral arguments later this month over whether all Covidien hernia mesh lawsuits should be consolidated before one judge for coordinated pretrial proceedings; a move supported by the manufacturers but opposed by some plaintiffs.

If approved, the consolidation would lead to Covidien being the fifth manufacturer with a federal multidistrict litigation (MDL) established over problems with hernia mesh products sold in recent years, alongside similar proceedings established for lawsuits over Atrium C-Qur, Ethicon Physiomesh, Bard polypropylene mesh and Kugel patches.

With at least 12 product liability complaints currently pending in nine different federal district courts, Covidien filed a Motion for Transfer with the U.S. Judicial Panel on Multidistrict Litigation (JPML) last month, indicating that the number of cases is expected to “balloon” in the coming weeks and months.

Each of the hernia mesh cases raise similar allegations, indicating design defects associated with Covidien Parietex and other products caused individuals to experience painful and debilitating complications after a hernia repair, often resulting in the need for risky revision surgery to remove the failed mesh.

While the manufacturer maintains the claims are without merit, it suggests a number of claims are likely to be filed as hernia mesh lawyers continue to advertise for potential claims, pointing to sharp increases in claims that were previously presented against Atrium, Ethicon and Bard over similar defects with their competing products, with litigation against each of those other manufacturers currently involving between 2,000 and 3500 cases.

On June 26, the JMPL issued a notice of hearing session (PDF), announcing oral arguments for and against consolidation of the Covidien hernia cases will be considered during a videoconference on July 30.

While some plaintiffs support consolidation, others oppose the move, noting it is premature to predict the number of claims that may be filed against Covidien, or indicating establishing an MDL would unnecessarily delay proceedings in cases that have already advanced significantly through discovery.

“Creating an MDL at this time would be extremely prejudicial…,” according to a response (PDF) filed on behalf of plaintiffs Sharon and Max Black. “Their Complaint has been pending since September 26, 2016 and if an MDL were to be created now, it would add another four years or more before their case is heard by a jury.”

Another plaintiff response (PDF) filed by Gary Northrup and Shari Jorden suggests most of the lawsuits against Covidien are being filed at the state level, suggesting there will not be a similar influx of new claims seen in the federal court system.

In complex product liability litigation, where a large number of claims are filed throughout the federal court system by individuals who suffered similar injuries as a result of the same or similar products or venues, it is common for the federal court system to centralize the litigation for pretrial proceedings. However, if hernia mesh settlements are not reached during discovery or following a series of early “bellwether” trials, each claim may later be remanded back to the U.S. District Court where it was originally filed to go before a jury.

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