Speculation About Hernia Mesh Settlements Mount As First Physiomesh Trial Postponed

The U.S. District Judge presiding over all hernia mesh lawsuits involving the Ethicon Physiomesh has postponed a bellwether trial set to begin on June 7, and continued all deadlines in other trial pool cases, which is fueling speculation that the parties may be close to finalizing a settlement to resolve large numbers of claims.

Ethicon Physiomesh was 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 3,500 Ethicon Physiomesh lawsuits pending throughout the federal court system, each involving similar allegations that the manufacturer sold an unreasonably dangerous and defective product, which caused plaintiffs to suffer severe abdominal pain, infection, hernia recurrence, adhesions, perforations, erosion and other injuries associated with failure of the hernia mesh.

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, where a small group of bellwether trial cases were selected to go before juries as early “test” trials.

While the outcomes of these bellwether trials will not be binding on other claims, they are designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation and promote hernia mesh settlement negotiations that would avoid the need for thousands of individual trials to be held nationwide.

Ethicon Physiomesh Lawsuits Delays

The first bellwether trials involving Ethicon Physiomesh were originally expected to begin last summer, but the start of the first cases has been delayed several times amid the continuing COVID-19 pandemic.

Earlier this year, a series of three cases were selected for trials scheduled to begin in March, June and September 2021. However, after the plaintiff selected for the first bellwether trial required additional surgery the same month his case was set to begin, the start of that trial was postponed until later this year, leaving a claim filed by Danielle Guffey which was expected to go to trial on June 7.

In an order (PDF) issued earlier this week, Judge Story announced the start of the Guffey trial has been continued until further notice from the Court. However, the order also announces that all deadlines in all of the other trial pool cases are also suspended.

The announcement came days after a series of motions in limine were filed by the parties, which argued over which evidence the jury should be allowed to hear in the trial, suggesting that recent developments appear to be having a dramatic change on the course of the litigation.

If the parties are negotiating a settlement of all Ethicon hernia mesh cases, it is not uncommon for Courts to postpone all deadlines to allow time to focus on finalizing and announcing terms of the deal. However, the Court has not provided any indication settlement terms will be imminently released .

Other Hernia Mesh Trials Scheduled<.h3>

In addition to lawsuit over the recalled Ethicon Physiomesh, tens of thousands of other product liability lawsuits have been filed against Atrium Medical, C.R. Bard and other manufacturers of similar polypropylene mesh products used in recent years, which have also been linked to high failure rates.

There are currently about 2,700 Atrium C-Qur lawsuits pending in the federal court system, which are centralized as part of a separate MDL before U.S. District Judge Landya McCafferty in the District of New Hampshire for coordinated pretrial proceedings, where a bellwether trial is expected to begin on July 7, 2021.

All Bard hernia mesh lawsuits are pending in yet another MDL, which is centralized before U.S. District Judge Edmund A. Sargus, Jr. in the Southern District of Ohio, where more than 12,300 cases are currently pending and the first bellwether trial is scheduled to begin on August 2, 2021.

It is unclear what impact, if any, an Ethicon Physiomesh settlement would have on these other litigations, and the scheduled trials involving Bard and Atrium hernia mesh.