COVID-19 has shut down the country and along with it, U.S. courthouses. That means thousands of patients injured by hernia mesh have had their day in court delayed and denied. The new year will change all of that.
Ethicon, a division of Johnson & Johnson (J&J), and Atrium Medical will face plaintiffs in two different multidistrict litigation (MDL) trials in January.
C.R. Bard/ Davol Inc. will hear its first bellwether case in April.
There are a total of 15,606 defective hernia mesh cases in the three MDLs. Many of the defective product cases involve a coated hernia mesh.
Ethicon has settled or tried more than 40,000 pelvic mesh cases. Hernia mesh is made of the same polypropylene so many of the patient injury issues will be the same complaints- mesh migration, infection, pain.
In the case of Physiomesh, plaintiffs will allege that the coating is the problem.
This Ethicon MDL 2782 is located in the Northern District of Georgia, Atlanta Division. Ethicon is facing 3,334 federal defective product cases (151 of those have resolved) and the first trial is set for January 25,2021 with Judge Richard Story presiding.
The plaintiff in the January trial, Jim Crumbley, was implanted with PHYSIOMESH to treat a hernia in Stockingbridge, Georgia in 2014. He had suffered an incisional ventral hernia. By December 2016 he had another hernia surgery which included retrieving pieces of the PHYSIOMESH.
Like the other plaintiffs, Jim and Diane Crumbly allege strict product liability for defective design, failure to warn, and manufacturing defects as well as negligence, violation of Georgia consumer protection laws, gross negligence, and loss of consortium.
PHYSIOMESH a Flexible Composite Mesh, is a synthetic polypropylene-based mesh used to repair hernia defects. DS (polydioxanone) film coats the polypropylene (PP) mesh. This was a unique design for Ethicon and promised to minimize adhesions and inflammation while facilitating incorporation of the mesh into the abdomen.
Instead, the plaintiffs allege the multi-layers prevented adequate incorporation of the mesh into the body and weakened the strength of the mesh.
PHYSIOMESH was voluntarily withdrawn from the market by J&J in May 2016. Plaintiff lawyers hope to prove J&J did so due to the incoming Physiomesh complication reports.
There were reportedly more than 330,000 Physiomesh devices sold worldwide before it was taken off the market. Half of those were in the U.S.
This is the federal MDL (MDL 2782) for Ethicon hernia mesh, Civil action 1:17-md-02782-RWS. There is also a state multi-county MDL for hernia mesh in New Jersey, the home state of Johnson & Johnson, one for PHYSIOMESH, another for Proceed hernia mesh as well as the Prolene hernia system.
Atrium Medical’s C-Qur MDL 2753, is consolidated in the District Court of New Hampshire in Concord.
C-Qur is a round hernia mesh which comes in three shapes. Atrium Medical of Hudson, New Hampshire is working under its parent company Maquet, based in Germany. C-Qur was recalled by the FDA in 2013 under a class II recall.
One of the problems was that the FDA found numerous instances of human hair being embedded into Atriums’ device.
However, C-Qur was not removed from the shelves of hospitals or doctor’s offices. Atrium simply wrote a letter notifying doctors to be aware the mesh coating could stick to the packaging.
C-Qur is also made from polypropylene (PP) and is a film coated mesh made with three fatty acids coating the mesh. C-Qur is advertised as having an “all-natural” gel coating, made with highly purified pharmaceutical grade fish oil.
Lawsuits allege the coating presents a high rate of infection and rejection, organ perforation, inflammation, and encapsulation of the mesh with scar tissue as well as a high rate of intense pain. In some cases, patients complain of rashes, poor memory, and chronic dental problems as well as adhesions connecting the mesh to the bowel.
Atrium's hernia mesh began being implanted at a much higher rate nationwide after Atrium signed a three-year national contract with Premier Inc. in 2010. Premier is a group purchasing organization (GPO), which supplies over one-thousand hospitals. GPOs are the only type of company in which kickbacks are actually legal.
C.R Bard/ Davol Inc. will face its first bellwether trial, April 19th in the Southern District of Ohio in Columbus, before Judge Edmund A. Sargus Jr. At one time, Judge Sargus predicted the Ohio MDL could swell to 10,000 cases over the Bard Ventralight ST hernia mesh.
Plaintiff Steven Johns is the first case that will go to trial April 19, 2021 in the Bard MDL (2846) based inthe Southern District of Ohio (Columbus), Case 2:18-md-2846.
U.S. District Judge Edmund A. Sargus issued a pre-trial order that the jury may award punitive damages to those alleging they’ve been severely injured by the defective Bard Ventralight ST hernia mesh medical device. In September, the judge denied the manufacturer’s motion for summary judgment.
Steven Johns v. C.R Bard, et al. Case No. 2:18-cv-01509-EAS-KAJ, alleges he faces pain, hernia recurrence and adhesions, and had surgery to remove the mesh and replace it with a new Ventralight ST. Judge Sargus ruled the defense experts cannot say the mesh, “is in no way defective” or that the warnings about the risk are sufficient. The implanting doctor says if he had known he wouldn’t have used this hernia mesh.
The New Jersey-based company is facing more than 8,000 product liability claims naming Bard’s Ventralex, Perfix, 3DMax.
The cases chosen so far are considered bellwether trials, which will indicate the relative value of the litigation and are used as guide to future settlements. The plaintiffs and defendants each select 8 cases to make up the bellwether trials. Whether the courts can retain jurors for a trial lasting two or three weeks remains to be seen. Will jurors be vaccinated by then? Will they be comfortable sitting in a courtroom with others?
These are questions that will be answered as trial time nears.
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