Mesh Medical Device News Desk, July 24, 2018 ~ At one time the multidistrict litigation (MDL) had more than 104,000 product liability cases filed over allegedly defective pelvic mesh. Johnson & Johnson and its Ethicon division were the largest among seven mesh makers.
But women who never had their mesh removed will not be marching forward with their cases, at least for now.
Image: Judge Joseph Goodwin, So District WV
500 Women Dismissed Without Prejudice
Judge Joseph Goodwin, who, for six years has overseen pelvic mesh litigation from his Charleston, West Virginia federal courtroom, on July 19 dismissed 500 women from the Ethicon (Johnson & Johnson) roster. The notice does not appear with the Judge’s orders but was placed in each individual case electronically.
They will not be dismissed permanently.
Women who have not had their Ethicon mesh removed (revised), will have the defective product cases dismissed without prejudice. They will have five years to refile their cases against Ethicon and Johnson & Johnson, if they do decide to have a mesh revision or removal.
Judge Goodwin, has made it very clear he wants to pare down the list of 104,000 cases in his court – the largest mass tort ever filed in one courtroom.
Ethicon is the mesh maker with the most cases before Judge Goodwin and 55,000 if you consider the global count of women who have filed defective product lawsuits against the healthcare giant.
The latest order removes just Ethicon cases.
MESH IN PLACE
Last spring, Ethicon announced it would no longer compensate women with a “mesh in place” from its TVT line of products used to treat stress urinary incontinence (SUI).
The reason? The medical devices were still on the market and in fact, a well-compensated medical society refers to these mesh devices, used to treat SUI as the “Gold Standard” despite the fact that they have been found to be defectively designed in a court of law (Huskey).
Standing firm, Ethicon motioned the court for Judge Goodwin to sort out the “mesh in place” women.
The reason she had not undergone a mesh removal didn’t really matter.
Maybe she had died and her estate was carrying on her claim. Maybe she could not undergo anesthesia because her health had deteriorated. She may be fighting cancer. Maybe she was deathly afraid of any more pelvic surgeries.
Maybe the mesh wasn’t causing her any problems or not enough to undergo sometimes brutal surgery.
Any “mesh in place” Ethicon case on the attached order filed July 19, would be dismissed “without prejudice,” meaning it could be refiled if she ever did attempt a mesh removal within five years.
The upside for the judge, who was age 76, was that he would be one step closer to retiring and ending the nightmare of 104,000 women before him, all wanting their day in court.
Last March, Ethicon motioned the court (ECF 5313) on how to rid itself of non-revision cases.
Executing the plan came from Judge Goodwin April 13, in the form of Pretrial order #293. First it defined the Ethicon Gynecare TVT marketed products that the order covered:
Gynecare TVT Retropubic (TVT) or Abdominal (TVT-A) System, Gynecare TVT Obturator System (TVT-Obturator), Gynecare TVT Abbrevo Continence System (TVT-Abbrevo), and/or Gynecare TVT Exact Continence System (TVT-Exact), (hereinafter collectively “the Ethicon Gynecare TVT Products”).
Even though some of these products had been litigated successfully in favor of the plaintiff, those had been revision cases. Judge Goodwin thought rather than lingering in the MDL for years, a future revision might eventually set a much-needed value for the case.
“The court is well aware of the issues in this litigation and believes there is significant value to the plaintiffs who have not undergone a revision surgery not being required to go forward with a case at this time when there is the possibility that they could be at risk of a surgery in the future.”
L.T of West Virginia is one of the 500 women who has had her case dismissed.
She was implanted with the TVT –O September 1, 2010 by Dr. Connie Perkins at Greenbrier Valley Medical Center in Ronceverte, WV. An unnamed “friend,” who answered her phone, said she has opted not to have her mesh removed. In fact, because it was not working and incontinence had returned, she opted to have another mesh implanted last May.
Judy Perry, now Tuckette, lives in West Virginia and was implanted with a TVT-O (“TVT-Oturator” is misspelled in the prefab short form), on June 24, 2008 at the Charleston Area Medical Center, by Dr. Uzay Yasar.
“There is some pain but not enough to require surgery” she tells MND.
She reserves the right to have some form of revision within the five years of dismissal. She knows it may be necessary.
OTHER QUALIFYING PROCEDURES
While Ethicon limited a refiling to a “medically necessary Revision Surgery,” Judge Goodwin broadened the definition of “revision” surgery offering other “qualifying procedures” that could substitute for a full mesh removal.
“For purposes of this order only, Ethicon agrees that plaintiffs who, although their treatment does not qualify as Revision Surgery within five years after the election, have more than one (1) in office revision of the mesh and who also have concomitant treatments of trigger point injections, vaginal physical therapy or utilization of vaginal Valium, that are demonstrated to be necessary by 6 contemporaneous medical records and that are performed by a competent, licensed physician who is neither retained nor funded by a plaintiff’s lawyer or a litigation funding entity for purposes of performing such procedures or treatments, nor where the litigation funding company has a relationship with the physician or the facility (or any related entity), will be treated the same as those plaintiffs who have a Revision Surgery within the five year period, as described above; however, the applicable statute of limitations shall begin to run upon the completion of the second of such multiple qualifying procedures.”
Each of the non-revised plaintiffs who does not wish to dismiss her case has until July 30th 2018 to complete a Plaintiff Fact Sheet and document any lost wages, medical expenses, all medical records, including five years before the TVT procedure.
Nine of the 500 women were among the 150 plaintiffs set for trial in Charleston before Judge Goodwin August 14, part of the Wave 7 of women who will have their Ethicon cases tried at the same time. ##
Pretrial Order #293, April 13, 2018
Mesh News Desk, Judge Goodwin to Dismiss Thousands of Ethicon Non Revision Cases, April 11, 2018