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The New Jersey Supreme Court is considering whether to establish a new consolidation program for all hernia mesh lawsuits filed in the state involving Ethicon Proceed and Prolene products, and whether the cases should be centralized before one judge for coordinated pretrial proceedings.
In a notice to the bar (PDF) issued in December, Glenn A. Grant, the Acting Administrative Director of the Courts announced that the court has received an application for the creation of a Multicounty Litigation (MCL) involving all Ethicon Proceed Surgical Mesh, Proceed Ventral and Prolene Hernia Mesh Systems filed in New Jersey Courts.
In August 2018, the New Jersey Supreme court established a separate multicounty litigation (MCL) in Atlantic County, New Jersey for all Ethicon Physiomesh lawsuits, which is a flexible composite mesh product that was recalled from the market in 2016 amid a higher-than-expected number of complications and early failures. However, a growing number of lawsuits over other hernia repair products have also been filed against Ethicon in New Jersey, where the manufacturer’s parent company, Johnson & Johnson, has it’s U.S. headquarters.
There are currently at least 200 product liability lawsuits involving complications with Ethicon Proceed and Prolene mesh that are already pending in Middlesex County, New Jersey. However, lawyers expect the size and scope of the litigation to continue to expand in the coming months and years as more individuals who have experienced problems file their cases in New Jersey, where Ethicon parent company Johnson & Johnson is based.
“The Proceed and (Prolene Hernia System) are all manufactured and sold by Defendants Ethicon and Johnson & Johnson. All are polypropylene-based mesh prosthetics indicated for the repair of hernias. These products are defective and unsafe for their designed and intended use,” according to the original application filed on December 3. “The claims that are the subject of this application have one important commonality: all actions allege injuries stemming from certain deleterious properties of polypropylene, the base components of the products discussed in this application.”
Plaintiffs allege that problems stem from how the hernia mesh products were manufactured. Ethicon Proceed mesh is composed of a layer of Oxidized Regenerated Cellulose (ORC), which is attached to a layer of light-weight polypropylene mesh with polydioxanone. It is a design not used in any other hernia mesh products, and plaintiffs claim the layered design allows bacterial contamination to proliferate. These design defects can lead to delamination of the two layers, resulting in seroma formation.
The request seeks to centralize and consolidate the cases before one New Jersey state court judge to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and to serve the convenience of common witnesses and parties. The plaintiffs have proposed that the cases be handled out of either Atlantic, Middlesex or Bergen counties, with Middlesex the preferred venue.
The New Jersey MCL process is similar to a multidistrict litigation (MDL) in the federal court system, where another consolidation has been established in the U.S. District Court for the Northern District of Georgia, which includes all Ethicon hernia mesh lawsuits filed nationwide throughout the federal court system. There are currently about 2,000 cases pending before U.S. District Judge Richard Story in the federal MDL, and a small group of representative cases are being prepared for early trial dates starting in February 2020, to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.
While the outcome of these federal “bellwether” trials will not be binding on other claims, including those filed in New Jersey state court, they may greatly influence eventual negotiations to reach hernia mesh settlements that would be necessary to avoid the need for hundreds of individual trials to be scheduled nationwide.