Mesh Medical Device News Desk, December 16, 2016 ~ MDL, Multidistrict Litigation. Readers of Mesh Medical Device News Desk have been hearing about the court where most of the transvaginal mesh cases are consolidated. But what is the MDL and how did it get started?
In early January 2012, the number of transvaginal pelvic mesh cases filed in various state courts was growing. All of the injured women claimed the mesh had caused injuries, some life altering. Many had revision surgeries to remove eroded mesh. Others had surgeries to attempt to have the mesh removed.
Regardless most of the women who decided to file lawsuits decides they were suffering from a multitude of injuries and that they did not receive informed consent.
A three-judge panel met in Miami and decided the cases should be consolidated in multidistrict litigation (MDL) in the federal court in Charleston, West Virginia where it would join similar cases pending against C.R. Bard filed two years earlier.
Multidistrict litigation is a fairly new way to deal with mass torts.
In 1968, Congress was responding to over 25,000 claims pending in 36 different federal courts alleging a nationwide antitrust conspiracy by the manufacturer of electrical equipment.
The Judicial Panel on Multidistrict Litigation (JPML) 28 U.S.C. § 1407, also known as the MDL Panel, was formed. Made up of judges from different judicial circuits, they convene around the country to determine whether civil cases, with common questions of fact, should be consolidated into federal district courts under one judge.
The goal was to streamline pretrial proceedings by avoiding inconsistent lower court rulings, allowing individual actions to move through the courts more quickly.
The initial MDLs involved defective products, airplane crashes, investment fraud and patent infringements, among others. Some of the better known MDLs are Vioxx, fen-phen and asbestos.
Unlike Vioxx, which had one manufacturer, Merck, and resulted in a $4.85 billion settlement, the pelvic mesh litigation has grown to include seven defendants and more than 97,000 cases, closing in on the longest-lasting largest MDL of asbestos with 121,000 civil cases.
Judge Joseph Goodwin was assigned to oversee the cases eventually naming the seven manufacturers – Boston Scientific, American Medical Systems, Ethicon (Johnson & Johnson), C.R. Bard, Coloplast, Cook Medical and Neomedic.
Some plaintiffs feel that multidistrict litigation unfairly favors the defendant corporation. A plaintiff may be precluded from litigating in her home state, which might be the forum of her choice and convenience.
A bellwether trial, so named for the lead male sheep who wore a bell to lead the flock, is selected from within the MDL to test legal theories before a jury and gives both sides the relative value of the cases.
Unless chosen to be a bellwether trial, individual plaintiffs receive much less attention in an MDL and must agree to whatever settlements are forthcoming as a result of those bellwether trials.
Bellwether cases generally lead to settlements but that has not been the case with many of the pelvic mesh manufacturers.
Johnson & Johnson, Boston Scientific and C.R. Bard have offered limited settlements, based on a point system of injury. The larger the mesh and the more surgeries, the higher her settlement amount.
While the questions of fact are the same – is this a product that was defectively designed and manufacturer? Were the instructions to the end user / doctor insufficient, essentially defective? Were there promises made by industry and its sales reps to doctors a breach of warranty? Should the companies be punished with punitive damages?
Because we have so many companies, Judge Goodwin has begun to consolidate even further, grouping cases in “Waves” with similarities, such as a single trial for Boston Scientific and its Obtryx pelvic mesh.
No one ever envisioned a mass tort this big and no doubt the chapter on pelvic mesh, its success and failures will be one for the history books for decades to come. ###