Risk of Upstaging Uterine Cancer is Common Issue in All Morcellator Lawsuits, Plaintiff Alleges

The U.S. Judicial Panel on Multidistrict Litigation (JPML) is scheduled to hear oral arguments next week over whether to consolidate all power morcellator lawsuits before one judge in the federal court system.

While manufacturers of the controversial medical devices have opposed centralizing the cases as part of a federal MDL, or multidistrict litigation, plaintiffs argue that all of the cases involve similar questions of fact and law over whether morcellation increases the risk of upstaging uterine cancer during a hysterectomy or myomectomy.

Power morcellators are medical devices used during minimally invasive, laparoscopic surgery to remove uterine fibroids or perform a complete hysterectomy, where the tissue is cut up and removed through a small incision in the abdomen. While the devices are designed to reduce the risk of infections or other complications associated with traditional surgery, the medical community has largely abandoned the devices over the past year, after recognizing that they may pose a serious and potentially deadly risk for some women.

Estimates suggest that about one out of every 350 women undergoing surgery for symptomatic uterine fibroids may have unsuspected sarcoma contained within their uterus. For these women, power morcellation may disseminate the contained cancer throughout the body, rapidly upstaging the leiomyosarcoma, endometrial stromal sarcoma or other uterine cancers to a very advanced stage.

There are currently several dozen product liability lawsuits pending throughout the federal court system against manufacturers of the devices, alleging that inadequate warnings were provided about the morcellator cancer risks for women undergoing the procedures or the medical community. As lawyers continue to review and file morcellator cases for women diagnosed with the spread of uterine cancer following a hysterectomy or uterine fibroid removal, it is ultimately expected that several hundred lawsuits will be filed nationwide.

In June, a group of plaintiffs filed a motion to centralize the power morcellator litigation before one judge in the federal court system, which is designed to reduce duplicative discovery into common issues in the cases, avoid conflicting rulings from different courts and the serve the convenience of the witnesses, parties and the judicial system.

Johnson & Johnson’s Ethicon subsidiary, Karl Storz, Richard Wolf Medical and other manufacturers of the controversial devices have opposed the creation of a morcellator MDL, arguing that there are too many different manufacturers and types of devices involved in the cases to justify centralization, and that the lawsuits will be dominated by the individual facts of each case.

In a preliminary statement (PDF) filed earlier this month in reply to the manufacturers’ opposition, plaintiffs Andrea and Kevin Phillips indicate that the U.S. JPML should not split up the cases against different manufacturers, since all of the lawsuits involve common questions, regardless of who made the power morcellator used during the surgery.

“First, each of the related actions against all manufacturers allege the same and/or substantially similar facts,” the filing notes. “Likewise, there is commonality as to the manufacturers’ defense of these actions in that they all commonly deny that their Power Morcellators can cause the injuries alleged, and they vehemently disagree with the FDA’s findings in this regard.”

Oral arguments on the motion are scheduled for an upcoming hearing session before the U.S. JPML on October 1, at the Daniel Patrick Moynihan United States Courthouse in New York City.