Covidien Seeks Dismissal of Lawsuits Over Hernia Mesh Complications

Hernia mesh manufacturer has asked the court to seal the motion for summary judgment for the next 10 days, while the parties sort out which confidential documents contained in the filing should be withheld from the public.

Covidien is expected to submit a motion for summary judgment today, asking the court to dismiss claims that could impact nearly 2,100 hernia mesh lawsuits. However, the company has asked the U.S. District Judge presiding over the litigation to keep the motion out of public view, at least temporarily.

The claims filed against Covidien, and its parent company, Medtronic, all raise similar allegations that various polypropylene mesh products sold in recent years contain dangerous design defects, leading to debilitating complications and often requiring revision surgery to remove the failed mesh.

Similar hernia mesh litigation has plagued manufacturers of other hernia mesh products for years, resulting in tens of thousands of lawsuits over Bard hernia mesh products, Ethicon’s Physiomesh and Atrium C-Qur mesh products, each of which resulted in global settlement agreements. However, Covidien is asking the court to dismiss the claims before trial.

In June 2022, a Covidien hernia mesh MDL, or multidistrict litigation, was formed in the District of Massachusetts under U.S. District Judge Patti B. Saris, who is leading the litigation through coordinated discovery, pretrial proceedings, and preparing a small group of bellwether cases for early trial dates.

Over the past three years, the parties have conducted general fact discovery and selected representative cases for the bellwether trials, which are expected to involve evidence and testimony similar to what could be repeated throughout hundreds of other future cases.

As part of that process, the court set a September 8 deadline for the parties to file dispositive and motions to challenge the admissibility of expert witness testimony. However, on September 5, Covidien attorneys indicated that their motion for summary judgment should be kept under wraps for at least ten days.

In a motion to temporarily seal (PDF), the hernia mesh manufacturer indicated that its motion will include “confidential” or “highly confidential” documents.

“At the time of production, Defendants identified the documents submitted as temporarily sealed exhibits as containing commercially sensitive information that may warrant protection from public disclosure.”

– Defendants’ Motion to Temporarily Seal

The defendants are requesting the motion be sealed for at least 10 days to give them time to carefully review each exhibit to determine which documents would outweigh the public’s presumptive right of access.

Opposition to any motions filed today will be due by October 13, with any further replies in support of those motions due by October 27.

Covidien Hernia Mesh Bellwether Trials

If the litigation survives the motion to dismiss, the outcome of the bellwether trials will not be binding on other plaintiffs. However, they will be closely watched to help the parties see how jurors may respond to a typical claim.

Judge Saris hopes that the results of these trials will lead the parties to a Covidien hernia mesh settlement agreement, which will avoid the need for hundreds of individual cases to be set for trial.

Following those bellwether trials, if no Covidien lawsuit settlement has been reached, Judge Saris could begin remanding large numbers of cases back to their originating court for individual trial dates. There are also hundreds of additional lawsuits against Covidien pending in the Massachusetts state court system.