Panel of Judges To Hear Oral Arguments For Covidien Hernia Mesh Lawsuit Consolidation This Month

This is the second time the panel will consider whether to establish a Covidien hernia mesh lawsuit MDL, after rejecting a previous request to consolidate the litigation in 2020.

The U.S. Judicial Panel on Multidistrict Litigation (JPML) is scheduled to hear oral arguments later this month about whether to consolidate all hernia mesh lawsuits brought against Covidien throughout the federal court system, and centralize the claims before one judge for coordinated discovery and pretrial proceedings.

The panel previously rejected a request to establish a Covidien Mesh MDL in June 2020, finding that there were too few cases pending at that time to justify formal pretrial proceedings in the federal court system. However, the manufacturer now indicates the number of claims “are indeed beginning to balloon”, with at least 73 lawsuits pending in seven different U.S. District Courts.

Each of the Covidien hernia mesh lawsuits raise similar questions of fact and law, leading the manufacturer to ask that the litigation be centralized before one U.S. District Judge to prevent duplicative discovery into common issues in the claims, avoid conflicting pretrial rulings and to promote judicial efficiencies.

In February, Covidien filed a renewed motion with the U.S. JPML, calling for consolidation of hernia mesh cases, indicating it was unable to disclose in 2020 that tolling agreements were in place with more than 6,000 potential claimants, who agreed to hold off on filing lawsuits while the parties attempted to negotiate hernia mesh settlements. The company claims that, as tolling agreements expire, complaints are being filed in state and federal courts nationwide at a rapid rate.

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, it is common for the federal court system to centralize the litigation for pretrial proceedings.

Covidien is asking that all of the hernia mesh cases currently pending or brought in the future throughout the federal courts be transferred to the U.S. District Court for the District of Massachusetts, where all but six current cases are already being pursued.

On April 14, the JPML issued a Notice of Hearing Session (PDF), announcing it will hear oral arguments on the creation of a Covidien hernia mesh multidistrict litigation (MDL) on May 26 in the Joseph F. Weis Jr. U.S. Courthouse in Pittsburgh, Pennsylvania.

At least three other hernia mesh MDLs are already established for claims involving other polyethylene products, with more than 15,400 Bard hernia mesh lawsuits centralized in the Southern District of Ohio, 3,600 Ethicon Physiomesh lawsuits centralized in the Northern District of Georgia and 3,251 Atrium C-Qur lawsuits centralized in the District of New Hampshire.

If consolidation is now approved for the Covidien mesh lawsuits, it is expected that the U.S. District Judge appointed to preside over the proceedings will select a small group of representative “bellwether” cases for early trial dates, to help gauge how juries are likely to respond to certain evidence regarding the alleged design defects with the products like Covidien Parietex, Covidien Symbotex and others.

While the outcomes of these bellwether trials will not be binding on other plaintiffs, they may help drive the parties toward settlements that would avoid the need for hundreds of individual trials to be held.