In an attempt to move the enormous number of transvaginal pelvic mesh cases through his court, Judge Joseph Goodwin will consolidate for trial 37 cases naming Ethicon (Johnson & Johnson) to be heard in his Charleston, WV court on December 7, 2015.
Previously filed as 26 cases last month, that was soon updated to 29 product liability cases. July 1, the tally was upped again to 37 cases with Mullins et al 2:12-cv-02952 as the lead case. (See Ethicon Doc 28).
Judge Goodwin is overseeing 78,000 product liability trials naming seven different mesh manufacturers..
(Previously when there were 26 cases, the lead case was Bryant, et al v. Ethicon, Inc. et al (2:12-cv-09311). The plaintiffs can be seen here in Pre Trial Order #182.)
In this action, all 37 plaintiffs allege they were implanted with TVT (transvaginal tape) used to treat stress urinary incontinence (SUI) and that the TVT has caused them a variety of life-altering injuries.
Common issues of law and fact allow them to be consolidated into one trial. All of these surgeries were performed in West Virginia, the home of each plaintiff, but by different physicians. All of the meshes were made by Ethicon, a division of Johnson & Johnson.
The product liability actions contend that products were defective in their design and manufacture and that the company was negligent in selling the polypropylene implants. The allegations also include negligence and punitive damages.
Failure to warn (the doctor) will not be one of the counts. It’s previously been include in the majority of pelvic mesh litigation.
In a July 1 filing, plaintiffs’ attorneys ask for clarification – Will causation and damages will be included and can the plaintiff pursue a failure to warn claim and breach of warranty later if she so chooses. (Ethicon Doc # 28, 2:12-cv-02952).
Judge Goodwin is facing the largest number of cases ever filed in one federal court. At this writing there are 77,732 pelvic mesh trials consolidated before him and Judge Goodwin has ordered cooperation from both sides to move litigation and resolution forward.
J&J’s Ethicon division represents the largest number of cases, 26,524, and the defendant has indicated no willingness to offer mass settlements to resolve these cases, outside of settling individual cases, generally during or before litigation.
Rule 42(a) allows the Court to consolidate actions when there are similar issues of fact or law.
The Ethicon multidistrict litigation (MDL) 2:12-md-2327 was part of consolidation in Judge Goodwin’s court in early 2012.
In creating this MDL, the Judicial Panel on Multidistrict Litigation ruled in its Transfer Order that “centralization will serve the convenience of the parties and promote the just and efficient conduct of this litigation.” The MDL has since been expanded to now include seven defendants.
In PTO # 182, Judge Goodwin states that in West Virginia, a design defect inquiry focuses on the date the product at issue was marketed, for these purposes October 2002, regardless of when the plaintiff received her implant. The question becomes whether the manufacturer used reasonable care in designing and manufacturing the product at the time it was marketed.
Made of polypropylene, a petroleum product, Ethicon makes a variety of meshes doctors use to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI). The company believes its products are safe and effective, despite the fact that it quietly removed four of its pelvic mesh products in June 2012. See Mesh News Desk story here.
The Master Complaint alleges the plaintiffs have suffered the following injuries from the TVT implant:
“The injuries, conditions, and complications suffered by women who have been implanted with Defendants’ [TVT] include, but are not limited to, mesh erosion, mesh contraction, infection, fistula, inflammation, scar tissue, organ perforation, dyspareunia (pain during sexual intercourse), inability to engage in sexual relations, urinary problems, inability to void, blood loss, neuropathic and other acute and chronic nerve damage and pain, pudendal nerve damage, shortening of the vagina, pelvic floor damage, chronic pelvic pain, urinary and fecal incontinence, prolapse of organs, and in many cases the women have been forced to undergo intensive medical treatment, including but not limited to, operations to locate and remove mesh, operations to attempt to repair pelvic organs, tissue, and nerve damage, the use of pain control and other medications, injections into various areas of the pelvis, spine, and the vagina, and operations to remove portions of the female genitalia.”
The women received their mesh implants from different physicians and unlike other trials, there are no allegations of medical malpractice filed against the doctors. The implant surgeries took place over a thirteen-year span of time.
TVT’s Recent $100 Million Loss
This new wave of cases against the TVT, transvaginal tape, erodes the traditional belief that TVT or “tape” or “slings” are safe and effective. The tape hammocks a sagging urethra or bladder improving urinary flow. In fact, medical societies still refer to TVT as the “Gold Standard”, however, that confidence is eroding.
A TVT mesh made by Boston Scientific, was the subject of a jury ruling in the recent Deborah Barba case that resulted in a $100 million jury award including $75 million in punitive damages.
The Barba case was the first trial to find the TVT was defectively designed, precedent setting in all mesh litigation.#
By PTO # 184, the court consolidated 37 cases which were filed by West Virginia plaintiffs implanted in West Virginia with the Ethicon TVT product on the issue of the defective design element of the plaintiffs’ negligent design and strict liability design defect claims. The lead case is 2:12-cv-02952. Trial is set for December 7, 2015.
PTO # 184, the court consolidated 37 cases which were filed by West Virginia plaintiffs implanted in West Virginia with the Ethicon TVT product on the issue of the defective design element of the plaintiffs’ negligent design and strict liability design defect claims. The lead case is 2:12-cv-02952. Trial is set for December 7, 2015.
140 Mesh Injury Lawsuits to be Consolidated in 3 MDLs in West Virginia, MND, Feb 7, 2012
FDA: Class 2 Recall, August 3, 2011 Pinnacle Pelvic Floor Repair Kit, Boston Scientific
Jury Awards Plaintiff $100 Million in Boston Scientific Pelvic Mesh Trial, MND, May 28, 2015