Judge Extends Covidien Hernia Mesh Lawsuits Deadlines, After Significant Discovery Deficiencies By Manufacturer

Manufacturer failed to search for ProGrip and Symbotex implant documents, despite years of pretrial proceedings, requiring plaintiffs to obtain an extension for deadlines in the hernia mesh lawsuits

The U.S. District Judge presiding over all federal hernia mesh lawsuits filed over problems with Covidien products has extended various deadlines in the litigation, to give the parties more time to finish discovery proceedings, after it was determined that the manufacturer failed to include documents related to mesh implants received by nearly half the plaintiffs seeking damages.

Covidien currently faces nearly 1,100 product liability lawsuits in the federal court system, as well as hundreds of additional claims pending in Massachusetts state court, each raising similar allegations that painful and debilitating complications were caused be a defective design used with certain polypropylene mesh products, including Covidien Parietex, Covidien Symbotex and others.

Given common questions of fact and law raised in the complaints, the federal litigation has been centralized for pretrial proceedings before U.S. District Judge Patti B. Saris in the District of Massachusetts, as part of a Covidien mesh MDL (multidistrict litigation), where the parties are currently engaged in discovery and preparing a small group of representative claims for early trial dates to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the claims.

Covidien Hernia Mesh Trials Delayed

Throughout the discovery proceedings, plaintiffs’ attorneys have raised concerns about numerous missing Covidien documents, which should be turned over to plaintiffs as part of the discovery process. Just two months ago, U.S. Magistrate Judge M. Page Kelly ordered the company to turn over a “voluminous collection” of hernia mesh complaints submitted by consumers and medical providers.

The order was issued in the hopes of keeping the early bellwether trials on track to begin in the first part of next year. However, on April 8, Judge Kelly issued a case management order (PDF) which extends general corporate discovery to December 9, and pushes the close of expert discovery until May 29, 2025.

As a result of the extension of the hernia mesh lawsuit deadlines, it now appears unlikely that the first test cases will go before a jury earlier than the end of 2025.

Plaintiffs Claim ProGrip, Symbotex Documents Missing

Plaintiffs themselves asked for the deadline extension, after determining there was potentially a massive trove of company documents that had not been included in any discovery proceedings to date.

According to a motion to extend Covidien discovery deadlines (PDF), which was filed on March 22, the Plaintiffs’ Steering Committee (PSC) noted that the terms “ProGrip” and “Symbotex” had never been used as search terms for Covidien’s custodial files. This came despite the company’s previous statements that the discovery documents it had turned over included all products at issue in the litigation.

“The omission of these two products from the collection was a shock to the PSC and could not have been discovered sooner because, until the end of February, despite the PSC’s insistence, Defendants’ counsel had not even received permission from their client to provide the PSC with the search terms used to collect the Covidien Production,” the motion states. “The significance of this omission cannot be overstated.”

Plaintiffs noted that 25% of the lawsuits filed in Covidien hernia mesh litigation involved “ProGrip” products, while cases involving “Symbotex” implants made up 24%. In addition, of the six plaintiffs chosen for the bellwether trial pool, two involved ProGrip implants and two involved Symbotex, meaning they comprise over half of the bellwether pool lawsuits.

“It is evident that, because of Defendants’ omission, the PSC is missing many—if not most—of the relevant documents related to this MDL,” the PSC argued. “The correction of this document deficiency cannot be haphazard. This deficiency—and its needed correction—alone justifies movement in the scheduling order.”

While the outcomes of the Covidien hernia mesh bellwether trials will not be binding on other plaintiffs, they may help determine the average hernia mesh lawsuit payouts that Covidien would be required to pay if each case goes to trial nationwide.

If the parties fail to negotiate hernia mesh settlements or another resolution for claims during the MDL proceedings, Judge Saris may later remand each individual case to the U.S. District Court where it originated for a future trial date.