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The U.S. District Judge presiding over all federal hernia mesh lawsuits involving problem with Ethicon Physiomesh indicates that the first “bellwether” case will go before a jury in December 2019, which is designed to help gauge how juries may respond to evidence and testimony that may be repeated throughout hundreds of similar claims.
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 complaints filed throughout the federal court system, the cases are centralized for pretrial proceedings before U.S. District Judge Richard Story in the Northern District of Georgia, as part of an MDL, or multidistrict litigation.
To reduce duplicative discovery into common issues in the cases, avoid conflicting rulings from different courts and to serve the convenience of parties, witnesses and the judicial system, cases filed in U.S. District Courts nationwide are consolidated before Judge Story for coordinated discovery and a series of early “bellwether” trials, which will test the relative strengths and weaknesses of the cases.
Judge Story previously established a bellwether process, where a small group of representative claims are going through case-specific discovery, which will be eligible for the first trial dates.
According to a practice and procedure order (PDF) issued on October 10, the first Ethicon Physiomesh bellwether lawsuit will go before a jury on December 2, 2019.
The order calls for the parties to each select five cases to serve as part of a trial pool, for a total of 10 claims. Plaintiffs’ expert disclosures and reports in those cases will then be served by May 1, 2019, and all expert discovery for trial pool cases should be completed by August 15, 2019.
By July 29, 2019, the Court 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 will be held in December 2019.
While the outcome of the bellwether trials is not binding on other plaintiffs involved in the litigation, the cases are being closely watched, as they may influence eventual negotiations to resolve claims.
Johnson & Johnson’s Ethicon unit introduced Physiomesh in March 2010, containing an absorbable film coating on each side of a polypropylene hernia mesh, which was designed to help the patch incorporate into the body and minimize inflammation. However, the hernia mesh was recalled and removed from the market amid a higher-than-expected number of individuals required revision surgery due to problems with the design.
As individuals nationwide contact hernia mesh lawyers after experiencing complications with Ethicon Physiomesh, the size and scope of the litigation is expected to continue to increase over the next few years.
Following the coordinated proceedings in the MDL, if Ethicon fails to reach hernia mesh settlements for individuals who had a Physiomesh patch fail, each individual complaint may be transferred back to the U.S. District Court where it originally would have been filed for a future trial date.