More than 2,400 cases Dismissed Without Prejudice today
Today, Monday, August 6, Judge Goodwin has been busy dismissing pelvic mesh cases from the Ethicon multidistrict litigation (MDL).
Image: Robert C. Byrd federal court, Charleston, WV
These are women who have “mesh in place” from the Gynecare family of meshes which includes: TVT, Retropubic (TVT) or Abdominal (TVT-A) System, Gynecare TVT Obturator System (TVT-Obturator), Gynecare TVT Abbrevo Continence System (TVT-Abbrevo), and/or Gynecare TVT Exact Continence System (TVT-Exact),
They are filed in the Ethicon (Johnson & Johnson) MDL or multidistrict litigation where cases are consolidated awaiting trial. Dismissed without prejudice, means they can be refiled if the woman undergoes any future mesh revisions/ removals within five years.
FIVE ORDERS TODAY
Nearly 1,500 cases were dismissed without prejudice by Judge Goodwin before lunch today, See #6509, #6508, #6507. Two additional #6510 and #6511 were filed after lunch. Each filing has approximately 500 names of plaintiffs. Altogether they removed 2,471 from the active list of defective product cases naming Ethicon.
In #6508, two plaintiffs are deceased (Milam 2:15-cv-05586, and Bunch 2:15-cv-04772), and three have lines through them (Lefever 2:14-cv-26332, Steward 2:14-cv-23424, and Koch 2:15-cv-07315).
#6507, includes one plaintiff who has died, (White 2:13-cv-28950). If a plaintiff dies, her estate must motion within 90 days for a substitute to continue the case. See judicial order here.
Will they ever have their day in court?
At one time in excess of 104,000 cases populated this multidistrict litigation (MDL) where cases are consolidated awaiting trial. , Johnson & Johnson’s Ethicon division was facing the most cases, 40,000 earlier this year but last month, Judge Goodwin said that number had been whittled down to 10,000 cases.
Some of those remaining are set for trial this month.
Ethicon argued the Gynecare family of meshes it produces are still on the market, still making money for Ethicon and even called the Gold Standard by at least one medical society, AUGS. Nevermind that some of the Ethicon meshes have been found to be defectively designed in a court of law (Huskey, TVT-O).
Pretrial order #293 (Amended to 298), defines the future for these plaintiffs.
Some of these plaintiffs range from having a mesh in place with no problems to being unable to undergo additional surgeries for a host of reasons.
Judge Goodwin has made it clear that within five years if a patient has a “qualifying procedure” she can refile as that could substitute for a full mesh removal surgery. That means:
“For purposes of this order only, Ethicon agrees that plaintiffs who, although their treatment does not qualify as Revision Surgery within five years after the election, have more than one (1) in office revision of the mesh and who also have concomitant treatments of trigger point injections, vaginal physical therapy or utilization of vaginal Valium, that are demonstrated to be necessary by 6 contemporaneous medical records and that are performed by a competent, licensed physician who is neither retained nor funded by a plaintiff’s lawyer or a litigation funding entity for purposes of performing such procedures or treatments, nor where the litigation funding company has a relationship with the physician or the facility (or any related entity), will be treated the same as those plaintiffs who have a Revision Surgery within the five year period, as described above; however, the applicable statute of limitations shall begin to run upon the completion of the second of such multiple qualifying procedures.”
ADDITIONAL DOCKET ACTIVITY
#6512 is an Inactive Docket Order stating that the following 27 cases have agreed to a settlement model with regard to Ethicon.
The court finds it unnecessary to conduct further proceedings on the active docket for those cases. Both sides may submit an agreed order of dismissal with prejudice on or before August 31 2018 to have the case finalized. Otherwise the court will hold a hearing to determine the appropriate actin pertaining to any remaining cases on the inactive docket. Counsel for both plaintiff and defendants are directed to provide quarterly reports as to their progress in dismissing cases on the inactive docket. The case can be reinstated if one of the parties motions the court showing, “good cause for such reinstatement.”
Among them Long v Ethicon, 2:13-cv-02133 (Lanier Law, NYC), Menegos v Ethicon 2:13-cv-10117 (Fentersheib Law), Glasco 2:13-cv-12041 (Lanier Law), Sheehe 2:13-cv-31020 (Motley Rice).
Also today Blizzard & Nabors LLP, counsel for some plaintiffs agreed to a confidential Settlement Agreement with Ethicon and some of its clients. Ethicon will pay the settlement to the Blizzard-Ethicon Qualified Settlement Fund to be dispersed according to the terms of the Settlement Agreement and to attorneys for fees and costs and any lienholders including governmental entities and to the Special Master and Fund Administrator.
The Settlement Alliance, LLC of Houston, TX is the appointed fund administrator.
See if your name is listed on those cases dismissed without prejudice!
Pretrial Order #293, April 13, 2018
Mesh News Desk, Judge Goodwin to Dismiss Thousands of Ethicon Non Revision Cases, April 11, 2018
Docket #6510 (here)