More Kugel Bellwether Trial Dates Scheduled in MDL

A federal judge has scheduled the third and fourth “bellwether” trials in the Kugel hernia patch litigation for November 2010 and January 2011, respectively. 

The Kugel bellwether trials involve allegations that hernia repair patches manufactured by C.R. Bard and their Davol, Inc. unit are defective and cause internal injuries when they fail. Hundreds of similar claims filed in federal courts throughout the United States are consolidated in an MDL, or multidistrict litigation, which is centralized before Chief Judge Mary M. Lisi in the U.S. District Court for the District of Rhode Island.

Four cases in the Kugel MDL were selected for early trials to help the parties gauge how juries will respond to evidence that is likely to mirror what will be presented in other trials. The first bellwether trial, which involved a Kugel lawsuit brought by John Whittfield, ended in a defense verdict last month. The second bellwether trial, filed by Christopher Thorpe, of North Carolina, and his wife, Laura, is schedule to go to trial on July 28.

Last week, Judge Lisi issued an order scheduling the trials a lawsuit brought by Vivian Bruce to begin in late November 2010, and for a lawsuit brought by Bridget McElhatton to commence in January 2011.

Between 2005 and 2007, three separate hernia mesh recalls were issued for different sizes and models of the Composix Kugel patch. The recalls were issued because the plastic ring in the mesh was found to be prone to break, potentially causing bowel perforations, chronic intestinal fistula and other internal injuries that often require additional surgery to remove the mesh.

The lawsuit brought by Bruce, from Michigan, alleges that a Composix Kugel Patch implanted in her in 2005 failed and on August 14, 2007, she was hospitalized for abdominal pain, nausea, and vomiting. The claim alleges that a CT scan revealed that the mesh had caused an abdominal wall abscess and fistula where it had separated from the wall of her bowel. The mesh also caused internal damage and infection, requiring Bruce to undergo extensive operations, the lawsuit claims.

The claim brought by McElhatton, of Wisconsin, alleges that she had a Kugel patch inserted in July 2006 in Minnesota. In April 2008, she was also diagnosed with an abdominal wall abscess at the site where the patch was implanted. Her abscess ruptured, and her doctors discovered that the Kugel patch ring had broken, causing her to suffer bowel perforation and reherniation, in addition to the ruptured abscess. She also required multiple surgeries due to the complications from the hernia patch failure.

There are more than 1,300 lawsuits pending in the federal Kugel patch MDL before Judge Lisi. The bellwether cases were selected to help the parties judge the strengths and weaknesses of their cases, and hopefully lead to a Kugel hernia patch settlement or other resolution for the litigation.

In addition to the cases pending in the MDL, another 1,700 lawsuits over the Kugel patch have been centralized in Rhode Island state court under Presiding Justice Alice B. Gibney.

Although the first bellwether jury verdict came down in favor of hernia patch makers, the jury did find that Davol and Bard were negligent in the design of their Composix Kugel patch. The plaintiff was not awarded any damages for his hernia repair problems, because the jury determined that he did not establish that the injuries were directly caused by or contributed by the design problems.