Judge Joseph Goodwin
Mesh Medical Device News Desk, February 5, 2018 ~ Its time to clear the decks of the MDL and Judge Goodwin's orders show he has run out of patience after six years of pelvic mesh litigation that continues to linger in his federal courtroom.
Be ready to try your cases by this fall, his new orders say!
There is a clear sense of urgency and impatience in the new orders issued by Judge Joseph Goodwin who is overseeing in excess of 104,000 pelvic mesh cases filed in his Charleston, WV district court.
Bryd federal courthouse, Charleston, WV
Judge Goodwin announced at this time last year that it was time to clear the decks of this MDL, multidistrict litigation, which was created in January 20112 by the Judicial Panel on Multidistrict Litigation.
It's not supposed to go on forever. An MDL is supposed to ease pre-trial proceedings so plaintiffs can have a speedy resolution of their case. In the few bellwether trials, the relative value of a case is supposed to be established.
That hasn't happened so now its time and the federal judge is giving both sides a strong shove.
The four orders affect 23,202 pelvic mesh cases filed by women implanted with polypropylene mesh to treat incontinence and pelvic organ prolapse.
"These orders are not good for either side," commented someone with knowledge of the court.
In four of the largest mesh maker actions, thousands of cases have been put into “Waves” or a groupings for pre-trial proceedings. Once discovery is completed they can be transferred to a federal court of proper venue or remanded back to the court from which it was transferred so they can be tried.
The four include Boston Scientific, American Medical Systems, Bard and Ethicon.
ETHICON (Johnson & Johnson)
Ethicon- Wave 8 is created in Pretrial order #280 for 13,200 Ethicon cases! Both sides must be ready for trial this fall! Both sides will meet September 3, 2018 to submit joint venue recommendations, where the trial will take place. Judge Goodwin will set the trial dates.
Cases can transfer out of West Virginia and into a state venue, where it was originally filed or New Jersey where J&J calls home.
Cases in the process of settling may be removed from the list and settled and women with meshes from more than one manufacturer may be relieved of some of the deadlines in that case.
Ethicon has 39,350 cases filed in the MDL with 12,716 listed as closed. That means it has the smallest percentage of closed or resolved pelvic mesh cases.
C.R. Bard – Must have its cases ready for trial by the end of October and like Ethicon it is limited as to the number of experts one may call. Treating physician depositions are limited to 4 and depositions must take no longer than three hours. Requests for production of documents is limited to ten. Wave 7 will be the final Wave of the Bard cases and includes 2,876 plaintiffs!
At this time Bard has 15,548 cases filed with 11,047 listed as closed.
AMS – American Medical Systems (now owned by Endo) has never had a trial so little discovery exists. That has not stopped Judge Goodwin for setting Wave 3 of AMS cases, entered as Pretrial order #249 January 30, 2018. October 26 2018 is the deadline to complete expert motions and both sides should be ready to go to trail. The venues will be decided by September 3, 2018 and 952 women are affected. AMS currently has 21,165 cases filed in the MDL with 19,524 listed as closed.
In its settlement documents, AMS requires lawyers to agree not to bring any more cases against the manufacturer. See the AMS Master Settlement here.
Complicating matters, Endo International Plc is facing nightmares of debt and falling generic medicine prices and its opioid painkiller Opana, is the focus of federal litigation. Its stock is perilously low and there is speculation of bankruptcy. As of November, the company agreed to pay $3.5 billion to handle its 46,000 mesh lawsuits but the dollars may not be enough.
Last August, AMS agreed to pay $775 million to close out outstanding pelvic mesh claims in the U.S. and internationally.
Boston Scientific Wave 4 will be formed and ready for trial also at the end of October. 6,174 women fall under this order.
Coloplast Waves 1,2, and 3 are awaiting an update as to which have not been resolved or dismissed.
Cook stopped having cases referred into the West Virginia MDL last September. There are 632 cases filed in the Cook product liability litigation and 137 filed in Neomedic which appear to be resolving since they are talking about dividing common benefit dollars and no discussion of trials.
U.S. District Court, Southern District of West Virginia
AMS Master Settlement, Freese & Goss 2013