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In recent months, thousands of hernia mesh lawsuits have been filed against C.R. Bard, Ethicon, Atrium and other manufacturers, and a growing number of claims continue to be brought as individuals discover that products used during hernia repair procedures over the past decade may be defective, increasing the risk of complications and the need for additional revision surgery.
According to recent court filings, there are now more than 3,100 hernia mesh product liability claims filed throughout the federal court system, each raising similar allegations that widely used surgical products were unreasonably dangerous and unfit for their intended purpose.
Given similar questions of fact and law raised against several different large manufacturers, three separate federal multidistrict litigations (MDLs) have been established, where complaints filed in U.S. District Courts nationwide are centralized for coordinated discovery and pretrial proceedings.
The largest MDL involves all federal Ethicon Physiomesh lawsuits, which are centralized before U.S. District Judge Richard Story in the Northern District of Georgia, and currently includes at least 1,804 claims.
This litigation stems from a global Ethicon Physiomesh recall issued in May 2016, after a higher-than-expected rate of abdominal pain, infection, hernia recurrence, adhesions, perforations, erosion and failures were linked to the multi-layered polypropylene mesh design, which was first introduced in 2010.
A separate MDL has been established before U.S. District Judge Landya McCafferty in the District of New Hampshire for all Atrium C-Qur lawsuits, which involve complications associated with this competing polypropylene product, which featured an Omega-3 fatty acid (O3FA) gel coating.
The Atrium C-Qur (pronounced “secure”) mesh was introduced in March 2006, with a novel design that was intended to reduce scar tissue formation, while promoting fixation of the mesh to the abdominal wall. However, the litigation has continued to grow in recent years, now including nearly 1,100 lawsuits filed by individuals who have experienced problems like inflammatory responses, bowel adhesions and other painful complications.
Finally, the most recently established MDL involves claims against C.R. Bard for a variety of polypropylene mesh products sold in recent years, including Bard Ventralex, Bard Perfix, Bard Composix and others. These Bard hernia mesh claims have all be centralized for coordinated pretrial proceedings before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio.
While there are currently only about 235 Bard claims pending in the MDL, it is widely expected that several thousand lawsuits will be brought in the coming months, and Judge Sargus has recently established procedures to streamline the process for the direct filing of complaints.
In each of the three hernia mesh MDLs, the courts have established a “bellwether” program, where small groups of representative claims are being prepared for early trial dates to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout each litigation, with the first cases are expected to go to trial in early 2020.
While the outcomes of these bellwether trials will not be binding on other claims, they will be closely watched and may influence eventual hernia mesh settlements that may be negotiated by the manufacturers to avoid the need for thousands of individual trials to be scheduled in U.S. District Courts nationwide in the coming years.