On June 2, 2015, Judge Joseph Goodwin, who is handling the transvaginal mesh multidistrict litigation (MDL), held a status conference attended by lead counsel for Plaintiffs, as well as counsel representing each of the defendant-manufacturers. The purpose of the status conference was to discuss the approximately 70,000 individual transvaginal mesh cases consolidated before Judge Goodwin in the United States District Court for the Southern District of West Virginia. The cases are part of multidistrict litigation as ordered by the Judicial Panel on Multidistrict Litigation.

For the uninformed, multidistrict litigation is a consolidation of civil cases transferred from different jurisdictions around the country to a single United States District Court to achieve certain pre-trial efficiencies. The aim of this consolidation is to preserve judicial resources, eliminate duplicities in the fact-finding process, and prevent inconsistencies in pre-trial rulings. Judge Goodwin currently presides over seven MDLs against various transvaginal mesh manufacturers.

To date, only one defendant-manufacturer, American Medical Systems (AMS), has settled the majority of its outstanding claims. In late 2014, AMS agreed to settle most of the approximately 20,000 lawsuits against it for around $1.6 billion. Firms across the country, including Beasley Allen, continue to press forward in an effort to resolve cases against the other defendant-manufacturers.

On May 28, 2015, a Delaware jury awarded Plaintiff Deborah Barba $100 million following a trial against defendant-manufacturer Boston Scientific. The verdict consisted of $25 million in compensatory damages and $75 million in punitive damages. Ms. Barba was implanted with Boston Scientific’s Pinnacle and Advantage Fit mesh products in 2009 to treat pelvic organ prolapse and stress urinary incontinence. Despite undergoing two corrective surgeries due to complications caused by the products, Ms. Barba continues to experience severe pelvic pain and other gynecological symptoms.

Following a two-week trial, jurors found Boston Scientific to have been negligent in designing and manufacturing the products and that it had failed to warn patients and doctors about potential risks associated with the products. This latest jury verdict is the sixth Plaintiffs’ victory against Boston Scientific, which include a $73.4 million verdict (subsequently reduced to comply with Texas damage caps) from a Texas court, a $26.7 million verdict to four women in Florida, and an $18.5 million verdict to a group of women in West Virginia.

Johnson & Johnson’s Ethicon division is the largest defendant-manufacturer involved in the transvaginal mesh litigation. It’s believed that Ethicon faces approximately 30,000 mesh claims – more than two-thirds of which are pending before Judge Goodwin. Recently, the Plaintiffs’ Steering Committee (PSC), a group of lawyers appointed by the court to represent the common interests of all MDL Plaintiffs, filed a motion requesting a plan involving multiple, consolidated trials.

Specifically, the PSC is asking Judge Goodwin to enter a Case Management Order providing for bellwether consolidations of cases that apply a single state’s substantive law, involve a single product, and reflect a representative range of injuries, to be tried before Judge Goodwin and other district courts across the country. “Bellwether trials” have long been seen as a useful tool to assist the parties in evaluating the strengths and weaknesses of their respective cases as they consider the prospects of resolution.

In its motion, the PSC argues that the traditional bellwether approach of establishing claim values through a small number of individual trials would be impractical due to the volume of cases pending against Ethicon as well as Ethicon’s present lack of interest in a broad settlement. The PSC argues that by prioritizing consolidated trials involving products that have not yet been tried, and by beginning the process in jurisdictions whose laws and processes have already been addressed, the parties can more efficiently evaluate fair settlement values for the full range of cases involving Ethicon pelvic mesh products.

On June 12, Judge Goodwin, who oversees 70,000 mesh implant cases in seven MDLs, said 26 of the roughly 23,000 suits against Ethicon should go to trial in November. Those suits involve West Virginia Plaintiffs who had surgery in the state to implant Ethicon’s TVT product used to treat stress urinary incontinence, according to the ruling.

After he had consolidated the cases, Judge Goodwin denied Plaintiffs’ bid to systematically consolidate cases by state and device. The ruling consolidated the 26 cases for trial on negligent and strict liability claims for alleged design defects in the product. By consolidating the suits on those limited claims, Judge Goodwin said the parties would be spared extra expense and any potential juror confusion could be easily managed. Judge Goodwin said in the consolidation order:

Indeed, this consolidation — on the discrete issues noted above — will save the parties the substantial cost of litigating multiple separate trials on these issues and, potentially, all remaining issues.

The judge found the fact that Plaintiffs’ surgeries to implant the TVT device involved different doctors over the course of 13 years was irrelevant to the design defect claims. Because the surgeries all occurred within West Virginia, the suits are subject to the state’s relevant laws, the judge said.

In addition to the numerous claims before Judge Goodwin in the MDL, Ethicon also faces consolidated claims pending in New Jersey state court. Recently, Judge Brian Martinotti ordered that a number of cases involving Ethicon’s TVT Obturator product move forward with case-specific discovery. Groups of cases such as this are often referred to as “discovery pool cases” and serve to provide applicable information about each parties’ claims and defenses with the ultimate goal of selecting appropriate cases for bellwether trials.

To date, Ethicon has faced only two trials involving its TVT Obturator product, both of which resulted in victories for the Plaintiffs. In September 2014, a federal jury in West Virginia awarded $3.27 million against Ethicon in a case involving the TVT Obturator product. In April 2014, a Texas state court jury awarded $1.2 million to a woman who suffered severe and debilitating injuries after being implanted with Ethicon’s TVT Obturator product.

Ethicon has also faced several trials related to its other products. In 2013, an Atlantic County, N.J., jury awarded $11.1 million in damages against Ethicon, including punitive damages as a result of Ethicon’s actions surrounding the manufacture and sale of the Prolift product, a product used in the treatment of pelvic organ prolapse.

If you need more information on the mesh litigation, contact Leigh O’Dell, Chad Cook, or Andy Birchfield, all lawyers in our firm’s Mass Torts Section, at 1-800-898-2034 or 334-269-2343 or by email at Leigh.Odell@beasleyallen.com, Chad.Cook@beasleyallen.com and Andy.Birchfield@beasleyallen.com.

Sources: Injury Lawyer News; Plaintiff’s Steering Committee’s Motion for a Case Management Order Regarding the Consolidation of Cases for Trial, In re: Ethicon, Inc. Pelvic Repair System Prods. Liab. Litig., MDL No. 2327 (S.D.W.Va. June 4, 2015); and Pretrial Order #182 (Order Consolidating Above Cases for Trial on Issue of Design Defect), In re: Ethicon, Inc. Pelvic Repair System Prods. Liab. Litig., MDL No. 2327.

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