Ethicon Hernia Mesh Cases to be Selected for First Physiomesh Bellwether Trial in September 2019

As a growing number of hernia mesh lawsuits continue to be filed by individuals nationwide who have experienced painful complications due to design defects associated with certain products used in recent years, the U.S. District Judge recently assigned to preside over all federal Ethicon Physiomesh cases is calling on parties involved in the litigation to select a group of 24 claims, to serve as potential bellwether trials beginning in September 2019.

Since June 2017, all federal product liability lawsuits over problems with Ethicon Physiomesh have been centralized before U.S. District Judge Richard Story in the Northern District of Georgia, to reduce duplicative discovery into common issues in the cases, avoid conflicting rulings from different courts on pretrial matters and to serve the convenience of the parties, witnesses and the judicial system.

Each of the Ethicon hernia mesh cases raise similar allegations, indicating that certain recalled Physiomesh products were defectively designed and manufactured, and that Johnson & Johnson and its Ethicon subsidiary failed to adequately warn patients and the medical community of the risks of complications, including adhesions, infections and the need for revision surgery.

In a Practice and Procedure Order (PDF), issued January 19, Judge Story outlined the steps for discovery and scheduling in the litigation, leading to an initial discovery pool. The order calls for each side to select 12 cases from all lawsuits pending in the federal multidistrict litigation (MDL) as of January 11, for a total pool of 24 claims.

The selections are to be made by May 15, with completed Plaintiff Fact Sheets for those cases due by June 15, and Defendant Fact sheets due by July 31.

The order calls for a second selection of 10 cases, five from plaintiffs and five from defendants, to be added to the pool by June 22. The Plaintiff Fact Sheets for those cases will be due by July 13, and the Defendant Fact Sheets will be due by August 21.

By December 1, the parties have been ordered to select 10 cases from the Initial Discovery Pool to form the trial pool cases, with each side selecting five cases each. The first trials are scheduled to begin in September 2019.

There are currently about 470 Ethicon Physiomesh complaints pending in the federal court system. However, as hernia mesh lawyers continue to review potential claims for individuals who have experienced complications following hernia repair, it is ultimately expected that several thousand lawsuits may be filed in the Ethicon Physiomesh MDL.

Johnson & Johnson’s Ethicon unit introduced Physiomesh in March 2010, containing an absorbable film coating on each side of a polypropylene hernia mesh, which was designed to help the patch incorporate into the body and minimize inflammation. However, the hernia mesh was recalled last year, after a higher-than-expected number of individuals required revision surgery due to problems with the design.

While the outcome of the early bellwether trials will not be binding on other hernia mesh cases filed against Ethicon, they will be closely watched by parties involved in the litigation may heavily influence eventual negotiations to resolve cases. Following the coordinated proceedings in the MDL, if Ethicon fails to reach hernia mesh settlements for individuals who had a Physiomesh patch fail, each individual complaint may be transferred back to the U.S. District Court where it originally would have been filed for a future trial date.