Ethicon Hernia Mesh Lawsuits Selected For Initial Discovery Pool in Physiomesh MDL

More than three dozen hernia mesh cases involving problems with Ethicon Physiomesh have been selected as part of an initial discovery pool, which will be prepared for a series of early “bellwether” trials to gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout hundreds of claims brought nationwide.

There are currently more than 1,450 product liability lawsuits pending against Johnson & Johnson and it’s Ethicon subsidiary, each raising similar allegations that design defects with Ethicon Physiomesh resulted in painful complications and the need for additional surgery after the surgical mesh failed.

The manufacturers issued a global Ethicon Physiomesh recall in May 2016, removing the product from the market amid reports of abdominal pain, infection, hernia recurrence, adhesions, perforations, erosion and failure of the mesh.

Given similar questions of fact and law raised in the Ethicon hernia mesh lawsuits, complaints filed in U.S. District Courts nationwide have been consolidated as part of a federal multidistrict litigation (MDL), which is centralized before U.S. District Judge Richard Story in the Northern District of Georgia for coordinated discovery and pretrial proceedings.

Judge Story has established a “bellwether” process, where a small group of cases will be prepared for early trial dates in the MDL. While the outcomes for these test trials will not be binding on other claims, they are designed to help the parties gauge the relative strengths and weaknesses of cases, facilitating potential hernia mesh settlements that may avoid the need for hundreds of individual trials nationwide.

Following a status conference last month, the parties filed a Notice (PDF) on November 5, identifying 37 claims that have been selected for inclusion in an initial discovery pool.

Over the coming months, these claims will go through case-specific discovery to be made “trial ready”, in anticipation of the first bellwether trials expected to begin in late 2019 or early 2020.

According to a Practice and Procedure Order (PDF) previously issued by the court, Plaintiffs’ expert disclosures and reports will be served by May 1, 2019, and Defendants’ will serve expert disclosures and reports by June 3, 2019. Rebuttal and expert supplemental reports are due by June 14, 2019, and the Court has indicated that all expert discovery for trial pool cases will be completed by August 15, 2019.

By July 29, 2019, the Court has indicated that it will determine the manner and timing of the trials, as well as the order of selection for plaintiffs. Daubert motions challenging the admissibility of expert witness testimony must be filed by August 28, 2019, and the first trial is currently set to begin December 2019.