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Transvaginal Mesh Cases Top 100k, Judge Wants To End MDL

from Whistleblower Law insights

Mesh Medical Device News Desk, January 30, 2017 ~ Judge Joseph Goodwin overseeing the transvaginal mesh multidistrict litigation (MDL) reportedly wants to end the MDL sometime this year.

The mass tort is now at 100,731 product liability cases filed in the West Virginia federal courtroom. 

Judge Joseph Goodwin who is overseeing the massive case load of transvaginal mesh in his federal courthouse in Charleston, WV had promised both sides he would do what it takes to move them through the MDL.

Judge Joseph Goodwin

Judge Goodwin now reportedly says he wants the cases resolved soon.

This update comes during the latest Harris Martin conference in Miami Beach January 25. Attorney Henry Garrard was asked the update 80 or so attorneys present on pelvic mesh litigation.

Garrard of Blasingame Burch Garrard Ashley law firm of Athens, Georgia, is the go-to man on mesh.  Most of the room full of attorneys at the Nobu Eden Roc Hotel were there to learn about the latest MDL litigation – Proton Pump Inhibitors, Eliquis & Stryker Accolade Hip System.

Garrard addressing Harris Martin conference, Miami Beach, Jan. 25, 2017

In a brief roundup Garrard said the following:

Ethicon – There will be 24 or 26 cases for the Mullins case to be heard March 6, 2017.

Judge Goodwin is not likely to move the date of the Mullins trial which has been moved multiple times already. No one is sure what form the trial will take since that number of plaintiffs has never been tried together in this pelvic mesh litigation.

Mesh News Desk has reported on the Mullins et al v. Ethicon Inc. Et al (2:12-cv-02952) case. With 31 cases to be tried originally, all of the women were implanted with Ethicon’s TVT (tension-free tape) and all are from West Virginia.  The women were implanted by some different doctors but their cases were substantially similar enough for them to be tried together.

This is part of Judge Goodwin’s promise to move things along in this litigation which now stands at 100,731 cases filed in multidistrict litigation in federal court in Charleston, WV with 38,681 cases closed as of today.

These are defective product cases and the plaintiffs must prove the TVT mesh was defectively designed and manufactured.

Previously Judge Goodwin has ruled that lawyers will not be able to claim there was a failure to warn the physician. Judge Goodwin said there was not enough evidence presented to show that other warnings would have changed doctor’s options.

Other than that, the details of trying so many plaintiffs in one court at one time has yet to be worked out. Suffice it to say it will present a burden to both sides, said Garrard.

In Philadelphia, February 27, 2017 the trial of Sullivan v. Boston Scientific (originally filed in Charleston 2:14-cv-18000) is scheduled in the Court of Common Pleas.

While Garrard did not elaborate on specifics, Ms. Sullivan was implanted with both the Uphold Vaginal Support System and the Pinnacle Pelvic Floor Repair Kit.  Additionally she received the Cook Medical Surgisis in 2012.

Her implanting physician was William E. Porter MD of Charlotte, NC.  The complaint alleges negligence, design defect, manufacturing defect, failure to warn, breach of express warranty, breach of implied warranty and punitive damages. Payton Murphy of the Murphy law firm of Baton Rouge represents Ms. Sullivan.

Garrard told the crowd both Ethicon (Johnson & Johnson) and C.R. Bard will see trials this year.  Four hundred of the oldest Ethicon cases will be put into a wave, or a grouping to be tried during the same proceeding. Bard cases will be put into waves of 200, 300 or 400 cases.

For the law firms with 20 or more cases in the Bard MDL, the judge will create a Bard wave and will do so proportional to the number of cases a firm has. If there are 2,200 to 2,300 cases that fit in, and if a firm has 25% of those cases, it will have 25% of the wave cases. Judge Goodwin may create waves of 200, 300, or even 400 cases.

AMS (American Medical Systems)  – The judge has created a new wave of 100 cases scheduled to be finished in terms of pre-trial workup by late summer.  Another wave is in the works.

Coloplast – Appears to be over but there is an issue with biologic cases. The judge really wants to close it.  There are motions filed in regard to the biologic issue and once that is determined, Coloplast can be shut down.

Covidien – Is essentially done. The judge instituted a program requiring the attorney to bring all of their clients, if they have not settled, to settlement conferences in WV. While almost all cases settled ahead of that, there were 20 or so cases that showed up for resolution hearings.   All but two of those cases settled.   One pro se person did show up and it may settle in a week or two. Covidien then may be put on an inactive status.

Judge Goodwin cannot close the MDL because Covidien cases are part of the C.R. Bard MDL and Bard MDL has both the Bard manufacturing product cases and Covidien manufacturing product cases.  Bard cases are still in negotiations and waves are being set up for Bard, so the Covidien MDL must remain open. The two reached an agreement where Covidien would take responsibility for a certain portion of the cases and Bard for the remainder.

Judge Goodwin has also remanded some Bard cases, perhaps 5 so far, and also remanding some Ethicon cases back to state court. Some have trial dates. Judge Goodwin says he’s going to remand more Bard and Ethicon cases and perhaps remand more AMS cases.

The Court has stated he intends to end the TVM litigation in the MDLs. Judge Goodwin had aimed for the end of March, which won’t be met. But through waves and remands he’s moving the MDL along.  No word on what will happen to the new cases filed.  Since November, 3,500 new cases have been filed in the pelvic mesh MDL.

The only major defendant without a wave is Boston Scientific, but that may happen fairly soon said Garrard.

In general, settlement negotiations are going on with all defendants, some with more success than others.

PELVIC MESH CASES IN THE MDL

As of today January 30, 2017

C.R Bard – 14,976 cases filed, 6,715 closed.
AMS – 20,735 cases filed, 16,211 closed
Boston Sci – 24,235 cases filed, 8,179 closed.
Ethicon – 37,646 cases filed, 5,266 closed.
Coloplast – 2,577 filed, 2070 closed.
Cook – 607 filed, 115 closed.
Neomedic – 137 cases filed, 125 closed.

 

HERNIA MESH

The new kid on the block is hernia mesh.

Hernia mesh is not new. Kugel hernia mesh were good cases if you had a ring break. Without one they were not as good, he said.

Garrard is working on two hernia products. Physiomesh was touted to be a large pore mesh with fewer complications but Ethicon put a glue in it and attached Mersilene to the glue and to the mesh, making a heavier nonporous product implanted in the body. It takes 8 to 9 months for the Mersilene and glue to be re-absorbed to the body and during that time you don’t have tissue ingrowth, which you’re supposed to have to secure the mesh.

C-Qur hernia mesh

C-Qur by Atrium Medical is a less porous mesh with baked-in fish oil. Since you ingest fish oil for health, it was thought to be a good fit with mesh, however, there is no porosity and no tissue ingrowth and the body reacts to the fish oil with infections.

Before they put the products on the market they were told by consultants these were not good products.  They also did some animal studies.

On Physiomesh they had animal studies where the majority of animals showed shrinkage, non-tissue ingrowth, inflammation and problems with the mesh. C-Qur animal studies showed infection and shrinkage. Both companies knew from the experts these are not good products, but they marketed them anyway.

After marketing there were some studies started on humans but both were discontinued because of the adverse results.

There is no MDL yet on Physiomesh, however C-Qur cases have been filed in state court in New Hampshire where an MDL may be formed. The judge is ready to move cases along for bellwether trials in the summer of 2018. ###

 

37 Comments

  1. Evy says:

    I sure hope they get this over with this year it’s been to long in coming.. I know it wont give me back the last 10 years but just give me some peace at least.I have Bard/Coviden & J&J …

    • Diane T says:

      I have turned my case òver to the LORD but I still wish I could see an end to this wait. Nothing wiĺĺ ever bring back what I have lost but doing something positive may bring a little bit of good to something so tragìc

  2. Angry says:

    Sadly I seen this coming now for a few years. In spite of my brain telling me this is not going to be a fair outcome for so many women who have had their life pretty much taken from them just to be left broken so badly and faced to live out their life in horrible pain
    My heart told me no way! There is no way our judicial system knowing our injuries are real. Our judges who are hearing these horror stories know damn right well we were done real dirty and not allow them to get away with this. How wrong my heart was!! As much money as these pharmaceutical companies fighting to give all of us one final slap in the face, they could have used just a percent of that money to help us. I hope they rot in hell, I’m praying for that.

  3. Tammy S Jackson says:

    Thank you Jane,
    Great article. Maybe something will happen.

  4. Patient Advocate says:

    MDLs HAVE FAILED US

    PRESIDENTIAL SURGICAL MESH APOLOGY, APPROPRIATE PATH TO SETTLEMENT:
    IT IS MY HOPE ONE DAY THE PRESIDENT OF THE UNITED STATES WILL ISSUE APOLOGY: This is a draft of the type of apology we should be given;
    Ladies and gentlemen, we have failed the nation. As President, I did not want it to take another generation to hide the unacceptable manner in which the nation has allowed Americans to become victims of surgical mesh biomedical experimentation. We will not return to a time when our nation fails to live up to the health and welfare standards of our nation to protect our citizens. The American Surgical Mesh Protection Act should be put into place by executive order. Without remembering this nation’s brutally harmed citizens, we cannot make amends, and we cannot go forward.
    One injured woman views surgical mesh life altering harm as the greatest sorrow of this age; she believes this period of Urogynecology will be remembered as the darkest period of Gynecological history in the United States. She believes if you have an implant log id of any transvaginal or hernia mesh implant you should be able to swiftly obtain restitution. A national settlement fund with all manufacturers, the FDA, the implanting surgeons, and hospitals should be contributors to a national trust. She believes the human rights of victims have been ignored. She believes Americans should not be used as unethical human experiments. She believes once Americans know the horror of implant methods of surgical mesh they will demand the end of it. A more personal rather than wholesale view of human beings should be the American standard.
    So, today America does remember the hundreds of thousands of men and women used in research without their knowledge and consent concerning surgical mesh, please forgive us for failing you. We remember them and their family members. Medicaid and Medicare patients accepted these solutions for these conditions they assumed they were without risk others never knew they were implanted. The medical care by the United States Public Health Service should have protected Americans, and instead, it betrayed them.
    Medical professionals are supposed to help when Americans need care, but in surgical mesh marketing they conceal risk and methods and the FDA, and other government agencies should not have left these Americans to feel as they are lied to by their government. Our government is supposed to protect the rights of its citizens. More than twenty years, hundreds of thousands of women and men betrayed, along with their spouses and children, along with the community.
    The United States government did something that was wrong — deeply, profoundly, personally wrong. It is a violation of our commitment to integrity and equality for all our citizens. No woman would willing have consented to place approximately one-half inch by two foot of plastic in her vagina. We failed Americans during the Tuskegee Syphilis experiment, and we have failed them again with the implanting of a transvaginal mesh, prostatectomy mesh and hernia mesh. To the survivors, to the husband and wives and family members, the children and the grandchildren, I say again as a former President said: No power on Earth can give you back the lives lost, the pain suffered, the years of internal torment and anguish. What has been done cannot be undone. But we can end the silence. We can stop turning our heads away. We can look at you in the eye and finally say on behalf of the American people, what the United States has allowed happening to surgical mesh victims is shameful. I as President am sorry. The American people are sorry — for the loss, for the years of hurt for your living hell. We face a challenge to balance in our time between science and technology we are the protectors of the safety of our citizens; we cannot fail again. Both are rapidly changing our lives with the promise of making us much healthier, more productive, more prosperous without violating our human rights. These changes mean we must not lie to one another and that we must not experiment on our fellow Americans. Nor, should we allow Mass Tort attorneys to strip you of your individual rights to pursue justice. The Americans who have fought the pelvic implant and hernia implant industries let us know we once again left our national conscience behind. No ground was gained, and we once again lost our moral bearings in the name of progress and harmed many Americans. The people who were involved in these procedures diminished the status of many women and men by abandoning the most basic ethical precepts. They forgot their pledge to heal and repair and replace them with implant and profit.
    I hope today and tomorrow every American physician, mass tort attorney, investor, government official and citizen will remember the lessons and horrors of transvaginal mesh and hernia mesh. Americans do not want plastic parts implanted in their bodies. The will not permit this any longer. The human body is unique, God-designed and created and the implanting of plastic is foreign and dangerous. The thoughts shared here today should pivot the nation and reset our moral, medical and legal compass. Thank you, and God bless you,
    In hopes Americans demand change! Mr. President.

    • Kitty says:

      That is exactly what I would want. Perhaps that was why the President was meeting with Alex Gorskey –perhaps he said-“please get this over with and apologize to these women…It is time to say “‘Im
      Sorry”” so they can move on.”

  5. Patient Advocate says:

    NO Light at the end of the tunnel…

    When a small group of Mass Tort attorneys, manipulate the outcomes many victims are left behind with nothing. Cutting to the chase, if you have plastic in your vagina, you should be paid a fair settlement. Who would have ever thought we would be having litigation over placing plastic in the vagina in America. Just the sound of it is insanity. Thousands will be denied settlements because money was more important that medical and legal ethics. Our grandmothers are rolling over in their graves at this horror. A 21st-century nightmare.Again try to say it out aloud, “Dr. please put plastic in my vagina.” Insanity is the only word for it. If you want to reduce all claims, cut attorney fees to 25 percent and get all parties contributing to a national trust. Don’t leave one damn one of us behind with no settlement. Don’t leave out one party who harmed us. We demand equity and a voice in our harm.

  6. Searching says:

    I’m just wondering are there attorneys that are including the implanting doctor in their suit against manufacturers? And is there going to be a suit including the tools used to place the mesh? All are responsible for our hell!

    • Jane Akre says:

      The implanting doctor has been included in a few cases filed in state court only. No they are leaving the tools on the table…. some call it a gentleman’s agreement to get things settled.

      • Cara says:

        What a shame that the tools won’t be included.I was pierced by the trocars and hemorrhaged.
        Talk about adding insult to injury.

        • Jane Akre says:

          Why did lawyers focus entirely on fabric? How about the implanting procedure which is patented therefore has value? What about the tools in the kit? It too is patented and have value! I believe that Samantha brought this up and it is very valid!

  7. dee says:

    just wondering if any AMS claims have been paid out? I think they are all supposed to be paid out by aug.31??
    thx

    • Jane Akre says:

      The $1.7 was supposed to be the entirety of AMS monies from my understanding… have you not received a settlement offer yet? Does your law firm talk to you? Have you asked them? Insist on speaking to an attorney…

      • dee says:

        I did receive a settlement offer and filled in everything and sent it back. My lawyer says I should receive a settlement by sept., but I’ve had no notice that that is guaranteed? Is a verbal notice enough?

  8. Liz says:

    My lawyers tell me my case was filed in WV against Ethicon. I had 4 additional surgeries to remove mesh that protruded through. I feel so ignorant at times because I’m not sure how all of this litigation works. From reading your article, does this mean I might have a glimmer of hope of a settlement offer this year? I originally filed in 2013.

    • Jane Akre says:

      it depends on your law firm, but this year looks hopeful….Does your firm talk to you? Which manufacturer do you have?

      • Liz says:

        The only time I hear from my lawyer is if I email them asking them the status, which I have only done once a year. My case was filed against Ethicon.

      • Liz says:

        The only time I hear from my law firm is if I’ve reached out to them. My case is against Ethicon. I was told it was part of the MDL? All I’m ever told is that Ethicon is not settling casss. So I’m not sure what’s going on with it.

        • Jane Akre says:

          Ethicon is settling some cases and after the new rash of trials, I suspect they will be settling more. If they are reading this…. why not do the right thing and help theses women now!!?

  9. Nancy S says:

    Who works for the FDA? What qualifications did the individual (s) have that allowed this catastrophe to happen? What research was done on our behalf? My empathy to all. We can’t turn back the clock but we can be sure it does not happen to our children. “When you walk through a storm hold your head up. Don’t be afraid of the dark”

  10. Joann Riddle says:

    February 17 made 3 years for my lawsuit but I have noticed that case filed after mine has settled how does that happen?

    • Jane Akre says:

      Unfortunately it does not go by date filed, maybe it was not a strong case and she just took a settlement offered? It doesn’t make sense….

      • Still Standing says:

        Cases are not settled numerically at all . Lawfirms negotiate settlements for all of their clients that had the same manufacturer in one settlement agreement. That is the bargaining chip. If you look on the MDL orders, you will see settlement funds set up for certain plaintiffs with one lawfirm named. There is a wide difference of expertise among attorneys. Some are more skilled and more knowledgeable about product liability and they come to settlement for their clients earlier.

  11. anonymous says:

    perhaps a letter writing campaign to our new president would produce some results. He actually seems to care about the United States Citizens it seems for a change. can’t hurt right!

  12. Undisclosed says:

    Sadly, I have all three implants! They have destroyed my life, my marriage, and so much more! All women need compensation at a significant amount! We did not ask for this, they cut corners and we are all suffering beyond there comprehension! It will not give our lives back, but at least JUSTICE shall be served!!!!!!!

  13. Liz says:

    Hi Jane
    I emailed me attorney asking about my case and if she knows about the settlement waves. Her response to me was:
    We are in Wave hell right now. Eleven of our Ethicon clients have been picked to move onto full blown discovery. However, we are also in settlement negotiations. We are hoping this is the Judge’s way of moving the cases along and pushing defendant towards active negotiations. Your case will never be forgotten about. We have worked it up and it is now with settlement attorneys. As soon as we have offers to settle, we will let you know.

    Do you know Why are some cases picked for full Blown discovery and what does it mean. And does this mean I can be a little hopeful?
    Thanks!!

    • Jane Akre says:

      Not sure Liz but it’s better to be worked up for full blown discovery than to sit idle in a court….. at least there is some movement! Discovery means each side gets to probe into the others business and documents. I’m assuming your case was a good one for you to be selected. I wish you only the best!!!!

      • Still standing says:

        It isn’t ne essarily good to be worked up for full blown discovery. See my posts in another section about the tremendous case costs related to being picked as a wave case that has to be trial ready. As I said, my case costs ended up being $85,000 all because of having to go through full discovery-my deposition, 6 physician depositions, plaintiff friends, family, etc. did NOT get that money back. Those who settled in the same tier without being worked up for trial got the same as I , but I had to pay for my case costs. Dont wish that on your case if it can be settled. Wave cases are picked by the plaintiff attorneys and defendants. If the judge orders 100 cases in a wave, the plaintiff cases pick 50 cases they want, the defendant wants 50 cases they want, generally those they think can be won by their side. It is arbitry at best, but getting selected to be trial ready is not necessarily a good thing for your end result.

        • Liz says:

          The way I read the email, I don’t think I was picked for the full Blown discovery. She said my case was worked up and is now with the settlement attorneys. Does anyone know how the tier systems work and what injuries or how many surgeries are required for the tiers? Thanks

          • Jane Akre says:

            Mesh in place meducal management is the lowest tier, it goes up from there, one revision, two, three multiple!!!

  14. Cheryal says:

    The amount being offered in settlements are insulting. You are a number, tier and that’s it. I’ve had 7 surgeries with various products. The tiers don’t factor in other manufacturers since each manufacturer is a separate claim. For example, I had AMS implanted which was excised less than a year from the implant date, after the AMS removal (partial at best) another product was implanted. The AMS case for tier purposes states I only had one surgery. The whole process is confusing, the attorney/law firm I hired takes forever to respond to my questions. My settlement is being handled by another law firm with no contact other than huge packets that come in the mail in what I call mass production. I scan the packets and email to the attorney I hired who then takes over a month to call me back … didn’t get my call, missed my email … always an excuse. I think my law firm thought my case would net a nice settlement and since it isn’t they don’t really want to bother with it. The whole process has been awful. There is a “Special Master” (this is really his title) who evaluates the settlement, if you a selected for a settlement and the Special Master determines your tier. Let’s not get me started on not only your attorney getting a cut of your settlement, but your health insurance provider (who you had when you had that surgery ) will get a money from your settlement along with the MDL attorneys as well as various fees.

    • Jane Akre says:

      I always wonder if you get your insurance premiums that you PAID for your insurance returned?

      • Cheryal says:

        I never thought that would factor in until I started getting letters from my healthcare insurance carriers. Over the course of all of these surgeries I lost my job twice so my insurance changed when I got a new job. Everyone wants a piece of the settlement, when its over we’ll be lucky to get 40% of the gross settlement. Many of us are not that old in age, I still worry what the future holds regarding my female health. The pain, scar tissue, my internal organs as well as the mesh that will always be there no matter what … It can never be 100% removed, it was never intended to be removed.

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