from Whistleblower Law insights

Mesh Medical Device News Desk, January 30, 2017 ~ Judge Joseph Goodwin overseeing the transvaginal mesh multidistrict litigation (MDL) reportedly wants to end the MDL sometime this year.

The mass tort is now at 100,731 product liability cases filed in the West Virginia federal courtroom. 

Judge Joseph Goodwin who is overseeing the massive case load of transvaginal mesh in his federal courthouse in Charleston, WV had promised both sides he would do what it takes to move them through the MDL.

Judge Joseph Goodwin

Judge Goodwin now reportedly says he wants the cases resolved soon.

This update comes during the latest Harris Martin conference in Miami Beach January 25. Attorney Henry Garrard was asked the update 80 or so attorneys present on pelvic mesh litigation.

Garrard of Blasingame Burch Garrard Ashley law firm of Athens, Georgia, is the go-to man on mesh.  Most of the room full of attorneys at the Nobu Eden Roc Hotel were there to learn about the latest MDL litigation – Proton Pump Inhibitors, Eliquis & Stryker Accolade Hip System.

Garrard addressing Harris Martin conference, Miami Beach, Jan. 25, 2017

In a brief roundup Garrard said the following:

Ethicon – There will be 24 or 26 cases for the Mullins case to be heard March 6, 2017.

Judge Goodwin is not likely to move the date of the Mullins trial which has been moved multiple times already. No one is sure what form the trial will take since that number of plaintiffs has never been tried together in this pelvic mesh litigation.

Mesh News Desk has reported on the Mullins et al v. Ethicon Inc. Et al (2:12-cv-02952) case. With 31 cases to be tried originally, all of the women were implanted with Ethicon’s TVT (tension-free tape) and all are from West Virginia.  The women were implanted by some different doctors but their cases were substantially similar enough for them to be tried together.

This is part of Judge Goodwin’s promise to move things along in this litigation which now stands at 100,731 cases filed in multidistrict litigation in federal court in Charleston, WV with 38,681 cases closed as of today.

These are defective product cases and the plaintiffs must prove the TVT mesh was defectively designed and manufactured.

Previously Judge Goodwin has ruled that lawyers will not be able to claim there was a failure to warn the physician. Judge Goodwin said there was not enough evidence presented to show that other warnings would have changed doctor’s options.

Other than that, the details of trying so many plaintiffs in one court at one time has yet to be worked out. Suffice it to say it will present a burden to both sides, said Garrard.

In Philadelphia, February 27, 2017 the trial of Sullivan v. Boston Scientific (originally filed in Charleston 2:14-cv-18000) is scheduled in the Court of Common Pleas.

While Garrard did not elaborate on specifics, Ms. Sullivan was implanted with both the Uphold Vaginal Support System and the Pinnacle Pelvic Floor Repair Kit.  Additionally she received the Cook Medical Surgisis in 2012.

Her implanting physician was William E. Porter MD of Charlotte, NC.  The complaint alleges negligence, design defect, manufacturing defect, failure to warn, breach of express warranty, breach of implied warranty and punitive damages. Payton Murphy of the Murphy law firm of Baton Rouge represents Ms. Sullivan.

Garrard told the crowd both Ethicon (Johnson & Johnson) and C.R. Bard will see trials this year.  Four hundred of the oldest Ethicon cases will be put into a wave, or a grouping to be tried during the same proceeding. Bard cases will be put into waves of 200, 300 or 400 cases.

For the law firms with 20 or more cases in the Bard MDL, the judge will create a Bard wave and will do so proportional to the number of cases a firm has. If there are 2,200 to 2,300 cases that fit in, and if a firm has 25% of those cases, it will have 25% of the wave cases. Judge Goodwin may create waves of 200, 300, or even 400 cases.

AMS (American Medical Systems)  – The judge has created a new wave of 100 cases scheduled to be finished in terms of pre-trial workup by late summer.  Another wave is in the works.

Coloplast – Appears to be over but there is an issue with biologic cases. The judge really wants to close it.  There are motions filed in regard to the biologic issue and once that is determined, Coloplast can be shut down.

Covidien – Is essentially done. The judge instituted a program requiring the attorney to bring all of their clients, if they have not settled, to settlement conferences in WV. While almost all cases settled ahead of that, there were 20 or so cases that showed up for resolution hearings.   All but two of those cases settled.   One pro se person did show up and it may settle in a week or two. Covidien then may be put on an inactive status.

Judge Goodwin cannot close the MDL because Covidien cases are part of the C.R. Bard MDL and Bard MDL has both the Bard manufacturing product cases and Covidien manufacturing product cases.  Bard cases are still in negotiations and waves are being set up for Bard, so the Covidien MDL must remain open. The two reached an agreement where Covidien would take responsibility for a certain portion of the cases and Bard for the remainder.

Judge Goodwin has also remanded some Bard cases, perhaps 5 so far, and also remanding some Ethicon cases back to state court. Some have trial dates. Judge Goodwin says he’s going to remand more Bard and Ethicon cases and perhaps remand more AMS cases.

The Court has stated he intends to end the TVM litigation in the MDLs. Judge Goodwin had aimed for the end of March, which won’t be met. But through waves and remands he’s moving the MDL along.  No word on what will happen to the new cases filed.  Since November, 3,500 new cases have been filed in the pelvic mesh MDL.

The only major defendant without a wave is Boston Scientific, but that may happen fairly soon said Garrard.

In general, settlement negotiations are going on with all defendants, some with more success than others.

PELVIC MESH CASES IN THE MDL

As of today January 30, 2017

C.R Bard – 14,976 cases filed, 6,715 closed.
AMS – 20,735 cases filed, 16,211 closed
Boston Sci – 24,235 cases filed, 8,179 closed.
Ethicon – 37,646 cases filed, 5,266 closed.
Coloplast – 2,577 filed, 2070 closed.
Cook – 607 filed, 115 closed.
Neomedic – 137 cases filed, 125 closed.

 

HERNIA MESH

The new kid on the block is hernia mesh.

Hernia mesh is not new. Kugel hernia mesh were good cases if you had a ring break. Without one they were not as good, he said.

Garrard is working on two hernia products. Physiomesh was touted to be a large pore mesh with fewer complications but Ethicon put a glue in it and attached Mersilene to the glue and to the mesh, making a heavier nonporous product implanted in the body. It takes 8 to 9 months for the Mersilene and glue to be re-absorbed to the body and during that time you don’t have tissue ingrowth, which you’re supposed to have to secure the mesh.

C-Qur hernia mesh

C-Qur by Atrium Medical is a less porous mesh with baked-in fish oil. Since you ingest fish oil for health, it was thought to be a good fit with mesh, however, there is no porosity and no tissue ingrowth and the body reacts to the fish oil with infections.

Before they put the products on the market they were told by consultants these were not good products.  They also did some animal studies.

On Physiomesh they had animal studies where the majority of animals showed shrinkage, non-tissue ingrowth, inflammation and problems with the mesh. C-Qur animal studies showed infection and shrinkage. Both companies knew from the experts these are not good products, but they marketed them anyway.

After marketing there were some studies started on humans but both were discontinued because of the adverse results.

There is no MDL yet on Physiomesh, however C-Qur cases have been filed in state court in New Hampshire where an MDL may be formed. The judge is ready to move cases along for bellwether trials in the summer of 2018. ###