Testing of Recalled Ethicon Physiomesh Exemplar Products Ordered in MDL

The U.S. District Judge presiding over all federal Ethicon Physiomesh lawsuits has established procedures for the manufacturer to produce exemplars of the recalled hernia mesh for destructive testing and use during depositions, hearings and trial.

There are currently more than 1,500 product liability lawsuits pending against Johnson & Johnson and it’s Ethicon subsidiary, each raising similar allegations that design defects with Ethicon Physiomesh resulted in painful complications and the need for additional surgery after the flexible composite hernia mesh failed.

Given similar questions of fact and law raised in the Ethicon hernia mesh lawsuits, complaints filed in U.S. District Courts nationwide have been consolidated as part of a federal multidistrict litigation (MDL), which is centralized before U.S. District Judge Richard Story in the Northern District of Georgia for coordinated discovery and pretrial proceedings.

Amid a higher-than-expected number of reports involving severe abdominal pain, infection, hernia recurrence, adhesions, perforations, erosion and failure of the mesh, the manufacturers issued a global Ethicon Physiomesh recall in May 2016, removing the product from the market worldwide and ceasing production. As a result, there are a limited number of devices available for use as “exemplars” in the litigation.

Last week, Judge Story issued a court order (PDF) calling for Ethicon to turn over eight exemplars for ten different variations of Ethicon Physiomesh within the next 30 days.

The order allows plaintiffs to conduct destructive testing on the devices, but indicates that they are expected to preserve some of these exemplars so that they can be used for other purposes during the litigation, since there are a limited number of products available. Any remaining exemplars intact after the litigation is settled or resolved wil be returned to Ethicon, according to Judge Story.

Over the coming months, it is expected that the number of cases will continue to increase as hernia mesh lawyers continue to review and file claims for individuals who have experienced complications following surgical hernia repair where Ethicon Physimesh may have been used.

As part of the coordinated proceedings in the MDL, Judge Story has established a “bellwether” process, where a small group of cases are being prepared for early trial dates, which are expected to begin in December 2019.

While the outcomes for these test trials will not be binding on other claims, they are designed to help the parties gauge the relative strengths and weaknesses of cases, facilitating potential hernia mesh settlements that may avoid the need for hundreds of individual trials nationwide.