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MDL Judge Recommends Remand of Remaining Lawsuits Over Ethicon Morcellators

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Following a number of settlements reached by Ethicon to resolve morcellation lawsuits brought on behalf of women diagnosed with the spread of cancer following laparoscopic removal of uterine fibroids, the U.S. District Judge assigned to preside over the coordinated litigation indicates that the few remaining cases that have not been resolved should be remanded back for individual trial dates.

Since October 2015, all product liability lawsuits filed against Johnson & Johnson’s Ethicon unit over the spread of cancer by power morcellators have been centralized before U.S. District Judge Kathyryn H. Vratil in the District of Kansas, as part of a federal multidistrict litigation (MDL).

Each of the claims raised nearly identical allegations that the use of an Ethicon morcellator during a laparoscopic hysterectomy or uterine fibroid removal caused hidden, or contained, cancer cells in the uterus to be spread throughout the abdomen, rapidly upstaging leiomyosarcoma, endometrial stromal sarcoma or other cancers.

Power morcellators are medical devices that became popular over the past decade, allowing surgeons to perform a minimally invasive procedure to cut up and remove the uterus or fibroids through an incision in the abdomen.

While morcellation was designed to reduce the risk of complications and shorten recovery times, concerns emerged about the risks for women with unsuspected sarcoma, which can not be detected or diagnosed before the procedure. Since warnings were issued by federal regulators in April 2014, the medical community has largely abandoned the use of morcellators, and Johnson & Johnson’s Ethicon unit, which was previously the main manufacturer of the device, stopped selling the tool.

After dozens of complaints were filed in U.S. District Courts nationwide, each involving similar allegations that Ethicon sold an unreasonably dangerous and defective device, without warning consumers or the medical community about the risk that it may spread aggressive cancer cells, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established coordinated pretrial proceedings before Judge Vratil. The move was designed to streamline the litigation, avoid duplicative discovery and conflicting pretrial rulings from different courts.

There were a total of at least 42 lawsuits transferred to the MDL, and there are now only three cases that remain unresolved, two of which involve Ethicon as a defendant.

Ethicon has been reaching morcellator cancer settlements with many women and families who brought claims. As a result, the parties filed a joint motion to dissolve the Ethicon morcellator MDL last month.

In a Suggestion of Remand (PDF) filed on June 30, Judge Vratil recommended that the U.S. JPML send the remaining cases back to the U.S. District Courts where they would have originally been filed for case-specific discovery and litigation, indicating that the justifications for coordination no longer exist.

While this likely signals the end of coordinated litigation, this may not be the end of lawsuits over the devices for Ethicon, as it is expected that the company and other manufacturers will continue to face new claims as morcellator lawyers review and file lawsuits for families who discover that the death of a wife or mother may have been caused by the use of the device during a laparoscopic hysterectomy or uterine fibroid removal.

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