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The U.S. District Judge presiding over all federal Ethicon Physiomesh lawsuits has set the first bellwether trial date to begin in November 2020, with a second case set to go before a jury in February 2021 and a third consolidated trial involving multiple plaintiffs will go forward in May 2021, unless a settlement or resolution for the hernia mesh litigation is reached.
Ethicon Physiomesh is a multi-layered, flexible composite hernia mesh product introduced by Johnson & Johnson’s Ethicon subsidiary in 2010. However, the manufacturer removed the product from the market only six years later, amid a large number of complaints involving complications with the hernia mesh, often resulting in the need for additional surgery to remove it from individuals’ bodies.
There are currently nearly 2,800 hernia mesh lawsuits filed throughout the federal court system involving problems with Ethicon Physiomesh, each raising similar allegations that the manufacturer sold a defective and unreasonably dangerous product, which caused plaintiffs to suffer severe abdominal pain, infection, hernia recurrence, adhesions, perforations, erosion and other injuries associated with failure of the hernia mesh.
Given similar questions of fact and law, the federal 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.
In a practice and procedure order (PDF) issued last month, Judge Story announced that the parties have selected four cases for immediate trial workup. The expert discovery for those cases is scheduled to be completed by July 15, in preparation for a series of early trial dates designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will likely be repeated throughout thousands of cases.
The order indicates that plaintiffs will get to select the first trial by the middle of next month, with dispositive or Daubert motions challenging the admissibility of expert witness testimony to be filed by July 31. Following a final pretrial conference on October 22, the first trial will begin on November 2, 2020, and is estimated to last two to three weeks.
By July 15, Defendants will also make a selection for the second case to go to trial, with dispositive or Daubert motions in that claim due by December 1, and trial set to begin on February 22, 2021.
A third trial has been set for May 10, 2021, and is expected to involve multiple plaintiffs that will go before the same jury, which would last about three to four weeks.
While the outcomes of these early “test” cases will not be binding on other plaintiffs, they will be closely watched by lawyers involved in the litigation, and are designed to help the parties weigh the relative strengths and weaknesses of their arguments.
How the jury responds to certain evidence in the cases will also greatly influence any eventually hernia mesh settlements Ethicon may offer to avoid the need for thousands of future claims to go before juries nationwide.
Although it has been several years since the hernia mesh was removed from the market, as individuals continue to experience complications caused by an Ethicon Physiomesh failure, the size of the litigation is expected to continue to increase over the coming months and years.
Following the bellwether trials, if Johnson & Johnson and it’s Ethicon unit fail to settle claims or otherwise resolve the litigation, each individual claim pending before Judge Story may later be remanded back to the U.S. District Court where it was originally filed, for a separate trial date.