Centralized Management Sought for Lawsuits Over Ethicon Prolene Hernia System (PHS) Mesh in New Jersey

A request has been filed in New Jersey state court to consolidate and centralize all hernia mesh lawsuits filed locally against Johnson & Johnson over problems with the Ethicon Prolene Hernia System (PHS).

In a Notice to the Bar (PDF) issued earlier this month, Glenn A. Grant, the Acting Administrative Director of the New Jersey Courts, announced that an application has been received for the creation of a Multicounty Litigation (MCL), involving all product liability lawsuits over Ethicon Prolene mesh that have been brought throughout the state court system.

Plaintiffs and defendants have tried to consolidate the cases twice before last year. However, the state supreme court rejected the requests in August 2018, and again in May 2019. However, the courts approved the creation of multicounty litigations for similar product liability lawsuits involving Ethicon Physiomesh in August 2018, and Proceed hernia mesh systems in May 2019, each of which have been linked to reports of similar design defects.

While the New Jersey Supreme Court previously rejected requests to consolidate the Ethicon Prolene hernia mesh lawsuits, it indicated that the parties could re-apply in the future.

According to the latest application, there are now about 107 Prolene hernia mesh claims pending in New Jersey, which is where the headquarters are located for Johnson & Johnson and its Ethicon subsidiary. Each of the lawsuits raise similar questions of fact and law, alleging that the Prolene hernia mesh system was defective, leading to failures, serious injuries, and often the need for revision surgery.

“These cases share common Defendants (and likely the same corporate witnesses), design elements, materials, manufacturing and production methods, and underlying science. Additionally, the parties are geographically dispersed, (as these products were sold throughout the nation); a high degree of commonality of injury exists; and a likely value interdependence exists among different claims,” the application states. “Further, there is a high degree of remoteness between the court and the actual decision makers in the litigation in that even the simplest of decisions may be required to pass through layers of local, regional, national, general and house counsel. All these considerations warrant MCL designation.”

The request seeks to centralize and consolidate the cases before one New Jersey state court judge to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and to serve the convenience of common witnesses and parties. The plaintiffs have proposed that the cases be handled out of Atlantic county.

The New Jersey MCL process is similar to a multidistrict litigation (MDL) in the federal court system, where another consolidation has been established in the U.S. District Court for the Northern District of Georgia, which includes all Ethicon Physiomesh lawsuits involving complications associated with that design, which was removed from the market in May 2016 due to a high rate of failures and complications.

There are currently about 2,300 Ethicon Physiomesh cases pending before U.S. District Judge Richard Story in the federal MDL, and a small group of representative cases are being prepared for early trial dates starting in February 2020, to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

While the outcome of these federal “bellwether” trials will not be binding on other claims, including those filed in New Jersey state court, they may greatly influence eventual negotiations to reach hernia mesh settlements that would be necessary to avoid the need for hundreds of individual trials to be scheduled nationwide.