Covidien Mesh Lawsuit Cleared for Trial Over Hernia Repair Complications

First Covidien hernia mesh bellwether trial will involve injury claims linked to the Symbotex mesh, which is made in part using pig tissue.

The first Covidien hernia mesh bellwether trial is set to begin next month, after the U.S. District Judge overseeing the litigation ruled that key injury claims involving the company’s Symbotex mesh can proceed before a jury.

Covidien, a Medtronic subsidiary, faces more than 2,400 hernia mesh lawsuits from individuals across the country who allege that various versions of the company’s mesh products are defectively designed, putting patients at risk of chronic pain, infections, adhesions, hernia recurrence and the need for revision surgery.

U.S. District Judge Patti B. Saris, in the District of Massachusetts, has overseen all Covidien hernia mesh lawsuits since June 2022, as part of a multidistrict litigation (MDL) involving coordinated discovery and pretrial proceedings.

Over the past months, Judge Saris has directed the parties through preparation of a small number of representative cases to serve as “bellwether” trials. These early test cases allow each side to present evidence before juries and evaluate how key legal and factual arguments are received, often shaping the direction of potential settlement discussions.

The first Covidien hernia mesh bellwether trial will involve a Symbotex lawsuit brought by Larry Patterson of Alabama, who underwent hernia repair surgery in July 2017 and later suffered adhesions, a bowel obstruction and a recurrent hernia. According to the court’s order, Symbotex is made from a non-absorbable polyester textile with an absorbable porcine collagen coating, which is intended to reduce tissue attachment if the mesh contacts organs or tissue in the abdomen.

Patterson alleges the collagen barrier degraded too quickly after surgery, exposing his bowel to the underlying polyester mesh before his body had time to heal. He required additional surgery in July 2020, during which doctors removed the mesh, repaired the recurrent hernia and resected part of his bowel where it had adhered to the old repair.

The Patterson trial is scheduled to begin July 13, following a postponement from earlier this year. Before the case could go before a jury, Covidien filed a motion for summary judgment, seeking to narrow the claims or have the lawsuit dismissed.

However, in a June 2 memorandum and order (PDF), Judge Saris denied much of the request, finding that Patterson had presented enough evidence for a jury to consider whether Covidien failed to adequately warn about Symbotex’s risks.

“Plaintiff has offered sufficient evidence for a reasonable jury to conclude that Covidien failed to adequately warn about Symbotex’s dangers.”

– U.S. District Judge Patti B. Saris

Judge Weighs Evidence About Symbotex Warnings 

A key issue in the ruling was whether Covidien adequately warned doctors about how long Symbotex’s collagen barrier would remain in place after surgery. While the product’s instructions indicated the barrier would degrade in less than one month, and Covidien trained sales representatives that it would fully resorb in 30 days, Patterson presented internal evidence suggesting the barrier may break down much sooner. That included a Covidien animal study involving a similar mesh, which found the porcine collagen film was fully resorbed after seven days.

Judge Saris found that a jury could decide whether Covidien’s warnings understated the risk of adhesions, bowel obstruction and hernia recurrence if the barrier degraded before it finished protecting the bowel from the underlying mesh. The court also found that Patterson’s failure to warn claims could proceed even though his surgeon did not remember reading the Symbotex instructions, since a jury could determine he learned about the 30-day barrier claim from Covidien sales representatives or marketing materials.

Judge Saris denied Covidien’s request to dismiss most of Patterson’s claims, including those involving failure to warn, negligence, misrepresentation, fraudulent concealment, breach of implied warranty, loss of consortium and punitive damages. However, she reserved ruling on Patterson’s design defect claims, which remain tied to a separate expert testimony dispute.

Serving as a bellwether trial, the outcome of the Patterson case will not be binding on other Covidien hernia mesh lawsuits, but will be closely watched to see how the jury interprets evidence and testimony from both sides. Since the case is supposed to be broadly representative of circumstances shared throughout thousands of similar claims, it is hoped that the outcome of these bellwether trials will help the parties reach a Covidien hernia mesh settlement agreement.

If no settlement is reached once the bellwether trials have concluded, Judge Saris may begin remanding lawsuits back to their originating districts for individual trial dates.

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