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The U.S. District Judge presiding over all federal Ethicon Physiomesh lawsuits indicates that the first bellwether trial involving the recalled hernia mesh will begin in April 2020, as part of a process designed to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout thousands of claims brought by individuals nationwide.
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 more than 2,000 product liability lawsuits over Ethicon Physiomesh pending throughout the federal court system, 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 a hernia mesh failure.
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.
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.
In an order (PDF) issued on June 20, Judge Story amended the pretrial practices and procedures regarding a small group of representative claims that are being prepared for early trial dates in the MDL, indicating that the first claim will go before a federal jury on April 20, 2020.
As part of the coordinated pretrial proceedings, the parties previously selected a group of about three dozen cases for an initial discovery pool, which was narrowed down to ten cases earlier this year that are eligible for the first trial dates. Those trial pool cases are currently going through expert discovery, which shall be completed by December 20, 2019.
Judge Story has directed the parties to submit proposals by November 29, 2019, regarding the process for selecting individual plaintiffs for trial, indicating that the court will issue an order regarding the manner and timing of bellwether trials by December 13, 2019.
Following challenges to the admissibility of expert witness testimony and hearings on any dispositive motions in early 2020, the first case will be presented to a jury to help the parties gauge the relative strengths and weaknesses of their positions.
While the outcomes of these early bellwether trials will not be binding on other plaintiffs, they will be closely watched by lawyers involved in the litigation and may greatly influence any eventually hernia mesh settlements Ethicon may offer to avoid the need for thousands of individual claims to go before juries nationwide.
“The parties are encouraged in making selections for Discovery Pool and Trial Pool cases to select cases that will be representative of all filed cases in order that the process of selection and trial will be a helpful process for evaluation of the entire docket of cases for trial and resolution of the entire docket of cases,” according to the order issued by Judge Story.
As individuals who received an Ethicon Physiomesh implant continue to experience problems and file lawsuits, the size of the litigation is expected to continue to increase over the coming months and years. However, 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.