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The U.S. District Judge presiding over all hernia mesh lawsuits involving recalled Ethicon Physiomesh products has amended a scheduling order for the preparation of cases for the first bellwether trials, which are now set to begin in February 2020.
There are currently at least 1,700 Ethicon Physiomesh lawsuits pending throughout the federal court system, each raising similar allegations that design defects with the flexible composite hernia mesh caused plaintiffs to suffer painful complications, which often resulted in the need for additional surgery after a hernia repair failed.
Johnson & Johnson and it’s Ethicon subsidiary 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.
On January 17, Judge Story issued an Amended Practice and Procedure Order (PDF), which set out general discovery rules and the process for selecting a pool of trial cases, which will be eligible to be among the first to go before a jury nationwide.
According to the order, parties will choose 10 cases by April 15 from an initial discovery pool of 24 cases, which were selected last year. Each side will get to pick five of the trial pool cases, which will then go through expert discovery in preparation for trial.
Expert disclosures and reports from plaintiffs are due by July 1, 2019, and Defendants’ expert disclosures and reports are due the next month, on August 2. All expert discovery for trial pool cases will be completed by October 14, 2019, with dispositive or Daubert motions are due by October 28, 2019. Responses to those motions must be filed by November 15, with replies due by November 25.
The first trial is set to begin on February 3, 2020, which is about two months later than originally outlined in a prior order issued in October.
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.
Over the coming months, it is expected that the number of cases will continue to increase as hernia mesh lawyers continue to review and file claims for individuals who have experienced complications following surgical hernia repair where Ethicon Physimesh may have been used.