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Ethicon Physiomesh Lawsuits Selected for Bellwether Trial Dates in MDL

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With thousands of hernia mesh lawsuits pending over problems allegedly caused by recalled Ethicon Physiomesh products, the U.S. District Judge presiding over the litigation has identified the four cases selected for early bellwether trials set to begin later this year.

Ethicon Physiomesh is a multi-layered, flexible composite hernia mesh product introduced by Johnson & Johnson’s Ethicon subsidiary in 2010. However, the manufacturer removed the product from the market only six years later, amid a large number of complaints involving complications with the hernia mesh, often resulting in the need for additional surgery to remove it from individuals’ bodies.

There are currently about 2,800 Ethicon Physiomesh lawsuits filed throughout the federal court system, each involving similar allegations that the manufacturer sold an unreasonably dangerous and defective product, which caused plaintiffs to suffer severe abdominal pain, infection, hernia recurrence, adhesions, perforations, erosion and other injuries associated with failure of the hernia mesh.

Given similar questions of fact and law, the federal cases are centralized for pretrial proceedings before U.S. District Judge Richard Story in the Northern District of Georgia, as part of an MDL, or multidistrict litigation.

On July 28, Judge Story issued a Practice and Procedure Order (PDF) identifying four cases selected by the parties for trial work-up, which have gone through case-specific and expert discovery that will be largely complete in the next few weeks.

A lawsuit filed by Jim and Diane Crumbly has been selected by the plaintiffs for the first scheduled trial, which is currently expected to begin on November 2, 2020. A second trial is scheduled to start on February 22, 2021, which will involve one of the remaining three claims to be selected by the defendants by October 12. A third trial date is set for May 10, 2021, which is expected to involve a consolidation of the two remaining bellwether claims before the same jury.

While the outcomes of these early “test” cases will not be binding on other plaintiffs, they will be closely watched by lawyers involved in the litigation, and are designed to help the parties weigh the relative strengths and weaknesses of their arguments.

How the jury responds to certain evidence in the cases will also greatly influence any eventually hernia mesh settlements Ethicon may offer to avoid the need for thousands of future claims to go before juries nationwide.

Although it has been several years since the hernia mesh was removed from the market, as individuals continue to experience complications caused by an Ethicon Physiomesh failure, the size of the litigation is expected to continue to increase over the coming months and years.

Following the bellwether trials, if Johnson & Johnson and it’s Ethicon unit fail to settle claims or otherwise resolve the litigation, each individual claim pending before Judge Story may later be remanded back to the U.S. District Court where it was originally filed, for a separate trial date.

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