MDL Sought for Covidien Mesh Lawsuits As Number of Claims Is “Beginning to Balloon”

The medical device manufacturer Covidien has renewed a motion to consolidate and centralize all hernia mesh lawsuits it will face throughout the federal court system, indicating that thousands of claims may ultimately be presented by individuals who have experienced problems with Covidien Parietex, Covidien Symbotex and similar products.

The U.S. Judicial Panel on Multidistrict Litigation (JPML) 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 that 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 claims 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 a memorandum of law (PDF) filed in support of it’s new motion on February 18, Covidien indicates that it was unable to disclose in 2020 that tolling agreements were in place with more than 6,000 potential claimants, who had agreed to hold off on filing lawsuits while the parties attempted to negotiate hernia mesh settlements. However, as the tolling agreements expire, complaints are being filed in state and federal courts nationwide at a rapid rate.

In addition to the federal litigation, at least 4,700 Covidien mesh lawsuits have been brought in Massachusetts state court, where the manufacturer’s U.S. headquarters are located. However, Covidien indicates that the vast majority of plaintiffs in those cases do not reside in Massachusetts and it intends to seek dismissal of the state court claims, which may result in many of those cases being refiled in the federal court system.

“If the Massachusetts court grants that motion, hundreds more cases will be refiled in federal court (or, if re-filed in state court, will be subject to removal based on diversity of citizenship),” according to the manufacturer. “These cases would be only a few strides out of the starting blocks: written discovery still being exchanged in the coordinated Massachusetts proceeding, and no depositions have been taken.”

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.

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 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 Covidien products. 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.