ALL HANDS ON DECK
MND, Nov 16, 2015 ~ In non-legal language you could say Judge Joseph R. Goodwin, who is overseeing nearly 90,000 pelvic mesh cases in his Charleston, WV courtroom, is calling all hands on desk this week.
Pretrial Order #200, signed October 16, says a mesh conference will commence Wednesday, November 18 and continue through the 19, convening representatives of the seven mesh manufacturers and lawyers representing the women who allege they were injured by the company’s transvaginal mesh products.
In the order, Judge Goodwin specifies executives from Ethicon (MDL 2327), a Johnson & Johnson subsidiary, be present to make sure they are receiving the full story on litigation from their counsel.
The order calls, “defendant client representative(s) with full authority to make all decisions related to MDL 2327; in house counsel for defendant(s) with full authority to make all decisions related to MDL 2327; settlement counsel (if any) for defendant(s) and lead counsel for plaintiffs and defendant(s) attend the status conference. “
All of the MDLs are listed except for Neomedic.
TSL & Sofradim, Bard, AMS and Boston Scientific have hour long meetings scheduled beginning at 1:30 (except for TSL & Sofradim), while Cook, Coloplast and Ethicon meet with Judge Goodwin on Thursday, November 19.
See PTO #200 here.
NUMBER OF CASES EXCEEDS 100,000
As of November 4, there were 84,394 pelvic mesh cases consolidated in multidistrict litigation (MDL) in federal court in Charleston, West Virginia. Most manufacturers have commenced in some form of settlements with injured Plaintiffs, with the exception of Ethicon, which has nearly 30,000 cases filed in this court, the largest of any manufacturer.
According to its November report to the Securities and Exchange Commission (SEC), Ethicon is facing in excess of 44,400 transvaginal mesh lawsuits.
American Medical Systems (Endo) reports in its recent SEC report it is facing 25,000 mesh claims; Boston Scientific in excess of 27,000; and C.R. Bard outlines 20,400 in its latest SEC report. Coloplast is a Danish company and Cook Medical is privately held so there is no government requirement it outline outstanding litigation to shareholders.
Outstanding mesh litigation could presently exceed 120,000 defective product lawsuits filed among the seven mesh manufacturers, an unprecedented number of cases over one issue.
DECEMBER TRIAL OF 39 PLAINTIFFS MOVED TO APRIL
In other court news, the December 7, trial of 39 women implanted with Ethicon’s TVT (transvaginal tape) has been moved to April 11, 2016.
The November 10 order was signed by Judge Joseph R. Goodwin. Document #229 says that the consolidated trial with the 39 cases as identified in PTO #184 (here), shall commence on April 11, 2016 at 8:30 am. The trial is limited to seven days, exclusive of jury deliberations, on a claim of design defect.
See Doc #229 Mullins et al 2:12-cv-02952.
These women all have the same mesh the TVT (transvaginal tape) made by Ethicon to treat stress urinary incontinence (SUI). The physicians vary among the Plaintiffs but all of the surgeries were performed in West Virginia over a 12 year period of time and each woman is a resident of the state.
They originally claimed negligence, design defect, defective product, manufacturing defect, failure to warn, breach of express warranty, breach of implied warranty and punitive damages. They are consolidated because there are common questions of law or fact and the women suffer similar injuries including mesh erosion, contraction, infection, fistula, inflammation, scar tissue, organ perforation, dyspareunia, urinary problems, neuropathic and chronic nerve damage and pain, pudendal nerve damage, chronic pain, among other problems.
Judge Goodwin is mindful that consolidation saves the parties the cost of litigating multiple separate trials. See Rule 42a under the Federal Rules of Civil Procedure here.
Judge decided last July to consolidate the 39 cases on the issue of design defect. The design defect claim will potentially affect thousand of other pelvic mesh design defect claims.
ETHICON MESH PARTICLE LOSS INQUIRY CONTINUES
You may recall the images of the flecks of blue mesh seen in packages of Ethicon mesh that was delivered to Taiwan in 2010. Within the sealed package, the pelvic mesh appeared to be disintegrating. See MND background story here.
In Pretrial order #204, filed 11-12-15, (PTO #204), J&J/Ethicon wants to prohibit Plaintiffs from taking a deposition related to various manufacturing issues and particle loss.
Magistrate Judge Cheryl A. Eifert writes the Plaintiffs should be permitted to inquire of a Rule 30b6 witness about manufacturing issues that arose in 2010 in Taiwan and regarding matters related to or arising from the Taiwanese product recalls. However, Plaintiffs can’t ask about generic manufacturing issues related to all TVT products since their inception.