Judge Plans To Speed Up Vaginal Mesh Lawsuits, Trials

As the number of vaginal mesh lawsuits filed throughout the federal court system continues to increase, with many of the manufacturers of these controversial products making little progress toward settling the claims, the U.S. District Judge presiding over the litigation indicates that he will prepare a large number of cases to be “expeditiously set for trial.”

U.S. District Judge Joseph R. Goodwin is currently overseeing seven different federal multidistrict litigations (MDLs), which have been established for similar claims against the various manufacturers of transvaginal mesh or bladder sling products used in recent years during surgical treatment of pelvic organ prolapse (POP) or female stress urinary incontinence (SUI).

The first MDL was assigned to Judge Goodwin about four years ago, involving lawsuits filed against C.R. Bard over their Avaulta mesh products. Since that time, additional MDLs have been established for cases involving products made by Ethicon, American Medical Systems (AMS), Boston Scientific, Coloplast Corp, Cook Medical and Neomedic.

There are currently more than 60,000 product liability lawsuits pending before Judge Goodwin, which is more than twelve times the total number of civil trials conducted throughout the entire federal court system each year. Between October 1, 2012 and September 30, 2013, just over 5,000 cases went to trial, with only about 2,000 involving juries, highlighting the size and scope of the vaginal mesh litigation.

In an order (PDF) issued late last month in the Bard litigation, Judge Goodwin indicated that the unprecedented nature of the lawsuits requires “extraordinary procedures” to move the cases forward.

“To date, C. R. Bard, Inc. (“Bard”) and the plaintiffs in this MDL have made little progress in working towards resolution of this MDL, which was assigned to me in 2010 and now has over 9,000 cases,” wrote Judge Goodwin. “I have conducted multiple status conferences, meetings with counsel, one bellwether trial, ordered the completion of a census sheet, and scheduled other bellwether trials which did not take place. Most recently, I ordered discovery and motion practice in two hundred cases (Wave 1 and 2). Upon completion, I will remand those cases back to their home districts.

“With so little progress to date, I find it necessary to take additional steps in this MDL,” said Judge Goodwin, who stated that a larger third wave of Bard Avaulta cases will now be prepared for trial.

Judge Goodwin indicates that he will order limited pretrial discovery in the Bard Avaulta MDL for this third wave of cases and rule on summary judgment or expert witness challenges, before then remanding the cases back to the U.S. District Courts where they originated, making “every effort” to see that they are “expeditiously set for trial.”

The order came shortly after it was announced that about 500 Bard Avaulta settlements were reached by the manufacturer during the first quarter of this year, which represents only a small portion of the total claims involved in the litigation.

Judge Goodwin also stated that this is the third in what will be a “continuing series of waves,” which will increase pressure on the manufacturer to consider a resolution, or face simultaneous jury trials throughout the country. Other manufacturers may also face similar trial schedules to move the lawsuits forward.

Vaginal Mesh Litigation

According to the latest case list (PDF) issued by the U.S. Judicial Panel on Multidistrict litigation on August 15, Judge Goodwin is currently presiding over 9,591 Bard Avault lawsuits, 19,380 Ethicon mesh lawsuits, 18,181 American Medical Systems (AMS) mesh lawsuits, 12,540 Boston Scientific mesh lawsuits, 1,637 Coloplast mesh lawsuits, 247 Cook Medical mesh lawsuits and about 66 Neomedic mesh lawsuits.

All of the claims involve similar allegations that women suffered severe and debilitating complications from vaginal mesh products manufactured by the different companies, where the mesh eroded through the vagina, caused infections or other internal injuries.

The litigation has been centralized before Judge Goodwin to coordinate discovery and pretrial proceedings, so that duplicative discovery is not needed in multiple claims spread throughout the country and to avoid conflicting rulings from different judges on common issues.

As part of the coordinated proceedings, Judge Goodwin has scheduled a series of early trial dates involving many of the manufacturers, known as bellwether trials, which were designed to help the parties gauge how juries may respond to certain evidence and testimony that may be repeated throughout other cases.

In July 2013, the first in what was supposed to be series of Bard Avaulta trials went before a federal jury, involving a claim filed by Donna Cisson, who alleged that the design and polypropylene material used in the Bard Avaulta Plus led to various injuries, including inflammation, extrusion, erosion, and excessive scarring. Following several weeks of trial, the jury awarded of $2 million in that bellwether case, including punitive damages designed to punish Bard for their actions surrounding the design and sale of the product.

A second trial began in August 2013, involving a lawsuit filed by Wanda Queen. However, the parties reached a confidential agreement to settle the Bard Avaulta case during the first day of trial.

A third Bard Avaulta settlement was reached earlier this year, in a case filed by Carolyn Jones, only weeks before the bellwether trial was set to begin.

Additional bellwether trials have been scheduled involving products manufactured by Johnson & Johnson’s Ethicon division, Boston Scientific and American Medical Systems.

In February, the first in a series of three Ethicon bellwether trials began before Judge Goodwin, involving a lawsuit filed by Carolyn Lewis. However, that case ended in a defense verdict at the conclusion of the plaintiffs’ case, after Judge Goodwin found that a reasonable jury could not find that she had met her burden of proof. The second federal Ethicon trial is set to begin next week.

A consolidated trial involving 11 different Boston Scientific Obtryx sling lawsuits is set to begin in October before Judge Goodwin. In addition, a second wave of Boston Scientific lawsuits are being prepared for trial as part of a second wave of bellwether cases, which are expected to be trial ready by January 2015.

Earlier this year, a series of bellwether trials involving AMS transvaginal mesh products were cancelled by Judge Goodwin, after parent company Endo Health Systems reached an agreement to pay $830 million to settle the majority of cases involving AMS mesh.

In June, Judge Goodwin said that Coloplast was making good progress toward reaching a settlement that would resolve the 1,500 claims filed against it. The company reportedly settled about 400 cases for $16 million in March.