Lawsuits on the Horizon - Do they Represent the Scope of Injuries?

Jane Akre
September 6, 2013
Judge Joseph R. Goodwin
Judge Joseph R. Goodwin

Mesh Medical Device News Desk, September 6, 2013 ~ 2014 should be a very busy year for transvaginal and incontinence mesh lawsuits.

The four Boston Scientific bellwether cases have reportedly been chosen by federal Judge Joseph R. Goodwin, overseeing about 30,000 cases consolidated in his West Virginia Court.

On August 1, both sides presented their proposed cases.

Judge Goodwin in a pretrial order said:

“I am not satisfied with most of the proposed selections I received from the parties. From the plaintiffs there were multi-product picks, while defendants offered several picks with potential statute of limitations issues.”

Additionally Judge Goodwin said the selections were not representative of the class because the plaintiffs had additional complications such as Alzheimer’s disease, vaginal obliteration, a participation in drug studies and an active runner with infertility issues.

Judge Goodwin asked both sides to resubmit cases for him to select according to the following criteria:

* The women must be between the ages of 40 to 60 when they were implanted with their Boston Scientific mesh.
* Follow-up revision or removal surgeries cannot top three.
* Judge Goodwin will only hear bellwether cases representing the Boston Scientific Obtryx, Advantage/Fit, Pinnacle or Uphold meshes.
* In the cases where more than one mesh was used or a woman has a product from more than one manufacturer, her case will not be considered as a bellwether.

A bellwether case is supposed to be representative of many other plaintiff injuries. Evidence presented in a bellwether is likely to be repeated in other lawsuits, another reason why it’s beneficial that the cases be similar. The jury verdict in a bellwether is considered a predictor of other cases and can lead to a settlement offer by the defendant. The plaintiff can accept the offer or have her case tried back in its original jurisdiction.

In an order issued August 29, Judge Goodwin chose four bellwether cases for three rounds of trials beginning February 11, June 17 and a third date of September 9, 2014 if it is necessary.

Here is the order (Pretrial Order #54).

The plaintiffs are:

Carol Lynn Fawcett v. Boston Scientific Corp.  2:12- cv-07497    Pinnacle (Feb. 11) website here.

Roseanne Sanchez v. Boston Scientific Corp.  2:12 – cv- 05762   Pinnacle (and Advantage SUI mesh not included in the litigation)

Carolyn F. Smothers v. Boston Scientific Corp.  2:12 – cv – 08016  Obtryx

Katherine L. Hall v. Boston Scientific Corp.  2:12 – cv- 08186  Obtryx

American Medical Systems

AMS bellwether lawsuits should begin in December, however one settlement has already been offered to a single law firm to settle an unknown number of cases for $54.5 million. Those cases settled were being represented by David Matthews, a Houston-based attorney who had filed the cases in both state and federal court.

This does not settle the majority of the 5,000 lawsuits that are filed in federal court in West Virginia where they have been consolidated for pre-trial proceedings.

Bard Avaulta

So far two Bard Avaulta cases have been heard before Judge Goodwin. The Donna Cisson case resulted in a $2 million verdict for Ms. Cisson and the second case settled on the eve of trial. While the dollar amount was not disclosed as both sides agree to confidentiality, the number is presumed to be higher than $2 million because the plaintiff had a six-figure income and many more productive working years ahead of her.

Ethicon Gynecare

Linda Gross as jury verdict was read
Linda Gross as jury verdict was read

Plaintiffs with actions pending against Ethicon, a division of Johnson & Johnson, will have to wait until August 2014 to have their day in the federal court in West Virginia. The one case heard so far in New Jersey last February resulted in $11.1 million in compensatory and punitive damages for Linda Gross, a nurse from South Dakota.

See background story here.

There are 5,938 Boston Scientific cases filed in the Charleston federal court. See the court's website here.

There are six manufacturers cases consolidated before Judge Goodwin, - Boston Scientific, American Medical Systems, Coloplast, Cook Medical, Ethicon and Bard.

See Pretrial order #51 here.

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