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The U.S. District Judge presiding over all federal Ethicon Physiomesh lawsuits has indicates that the first federal “bellwether” trial will begin on June 22, pushing back the pretrial schedule about two months.
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 more than 2,300 product liability lawsuits over Ethicon Physiomesh pending throughout the federal court system, each raising similar allegations that the manufacturer sold a defective and unreasonably dangerous product, which caused plaintiffs to suffer severe abdominal pain, infection, hernia recurrence, adhesions, perforations, erosion and other injuries associated with a hernia mesh failure.
Given similar questions of fact and law, the federal cases is 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.
To reduce duplicative discovery into common issues in the cases, avoid conflicting rulings from different courts and to serve the convenience of parties, witnesses and the judicial system, cases filed in U.S. District Courts nationwide are consolidated before Judge Story for coordinated discovery and a series of early “bellwether” trials, which will test the relative strengths and weaknesses of the cases.
In June, Judge Story announced that the first bellwether trial would go before a federal jury on April 20, 2020. However, in an amended practice and procedure order (PDF) issued on September 23, the start of the first hernia mesh trial in the litigation has been pushed back to June 22, 2020.
The order indicates that by January 27, 2020, the Court will decide the manner of trial, the order of selection for plaintiffs and the timing of additional trial cases. Daubert motions challenging the admissibility of expert witness testimony will be due in each trial case by February 24, 2020, and the Court indicates that a pre-trial conference will be set at an appropriate time before the first trial begins in June.
While the outcomes of this hernia mesh trial, and any other early bellwether cases that go before a jury, will not be binding on other plaintiffs, it will be closely watched by lawyers involved in the litigation and may greatly influence any eventually hernia mesh settlements that may be necessary for Ethicon to avoid thousands of individual trial dates nationwide.
In addition to lawsuits over problems with Ethicon Physiomesh, a number of similar claims are being pursued against manufacturers of other polypropylene products introduced in recent years, including Bard hernia mesh, Covidien Parietex mesh, Atrium C-Qur and other products.