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Ethicon Physiomesh Claims Selected as Trial Pool Cases in Federal MDL

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A group of ten Ethicon Physiomesh lawsuits have been selected for a bellwether trial pool in the federal court system, where there cases will be prepared for a series of early trial dates to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout thousands of claims brought by individuals who experienced problems with the recalled hernia mesh.

Johnson & Johnson and its Ethicon subsidiary face nearly 2,000 product liability lawsuits over hernia mesh complications associated with the flexible composite mesh, which was removed from the market in May 2016, following an alarming number of reports involving abdominal pain, infection, hernia recurrence, adhesions, perforations, erosion and failure of the mesh. In most of the cases, plaintiffs required additional surgery to remove the mesh or repair damage that it caused.

Given similar questions of fact and law raised in complaints filed throughout the federal court system, the Ethicon Physiomesh 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. The process is designed 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.

As part of the coordinated management of the litigation, Judge Story has previously established a bellwether program, which will result in a series of trials early next year, which will be used by the parties to gauge the relative strengths and weaknesses of their case.

In a notice (PDF) posted on May 10, a group of ten cases were identified, which are part of a bellwether trial pool, from which the first claims will be selected to go before a jury starting in February 2020. The pool includes five cases selected by each side, which are designed to be representative of issues that will be presented throughout the litigation.

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.

As lawyers continue to review additional claims for individuals who have experienced problems following a hernia repair, the number of Ethicon Physiomesh cases filed in the federal court system is expected to continue to increase. Following the bellwether trials, if the manufacturer fails to settle the cases or otherwise resolve the litigation, each individual case may be remanded back to the U.S. District Court where it was originally filed for a separate trial date in the future.

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