While the U.S. Judicial Panel on Multidistrict Litigation (JPML) considers whether all Physiomesh lawsuits from people claiming that the hernia mesh caused them injuries should be consolidated into a single docket, device maker Ethicon has filed a response to the panel in opposition to the transfer.
Ethicon, a subsidiary of Johnson & Johnson, filed its response to the panel April 13 to argue against the plaintiff’s request for the creation of a multidistrict litigation (MDL).
Plaintiffs in cases involving the controversial hernia mesh implant are seeking transfer to a single district to increase judicial efficiency and offer convenience to all parties.
“Having a single judge preside over the pretrial proceedings in these cases would promote efficiency and economy by avoiding duplicative discovery from similarly situated claimants who have asserted common product liability claims, will prevent potentially inconsistent pretrial rulings regarding factual and legal issues common to all cases, and will help preserve the resources of the parties, their counsel and the judiciary by eliminating redundancy of effort,” plaintiffs wrote in support of the motion March 9.
An MDL allows cases that share similar questions of fact to transfer to one federal district in order to consolidate discovery proceedings and pretrial motions. The idea is to save time and money by grouping the cases together.
In response to the plaintiffs’ claims that it would promote efficiency and economy, Ethicon wrote that cooperation could be done without the need of an MDL.
“There also is no reason to centralize these cases, because the parties are perfectly capable of working cooperatively to obtain the same efficiencies that centralization is designed to achieve,” Ethicon’s motion states.
“These cases involve plaintiffs’ firms with whom Ethicon has worked in the past, and many plaintiffs are represented by a handful of law firms. Defendants stand ready to coordinate discovery efforts with plaintiffs’ counsel,” Ethicon adds. “Transferring the existing actions would disrupt the discovery in place.”
Plaintiffs Suffer Range of Injuries from Physiomesh
The U.S. Food and Drug Administration first approved Ethicon’s Physiomesh for use in 2010 under the agency’s 510(k) approval process. The device is designed to aid in the repair of hernias by patching up the weak spots in the abdominal wall.
Although it was originally marketed as a way to reduce the incidence of hernia recurrence, patients implanted with Physiomesh began experiencing a range of unexpected side effects. Ethicon withdrew the hernia mesh device from the U.S. market in 2016 after data showed that Physiomesh actually had a higher risk of recurrence than other hernia mesh.
A growing number of patients have sued Ethicon for failing to warn of dangers and negligence after suffering from a wide range of injuries, including bowel obstructions, infections, perforations and more.
In its opposition to consolidation, Ethicon uses the variety of injuries as a reason to decline the creation of an MDL.
“Although Plaintiffs may point to hernia recurrence as the common injury that binds these cases together, a closer look at the complaints shows a wide variety of alleged injuries, such as abdominal abscesses and intestinal fistula, bowel puncture, erosion and bowel resection, bowel adhesions, fistula and infection, and recurrent inguinal hernia,” Ethicon states.
The company goes on to say that each case would have to be thoroughly examined to find the true cause of the specific injury.
“For instance, each of the claimed conditions, including recurrence, has many different accepted potential causes (e.g., surgical technique) and different risk factors (e.g., medical history, concomitant injuries, obesity, smoking, age, genetics, size of hernia, infections, and chronic cough) that could independently explain the patient’s alleged injuries,” the response says.
Ethicon Seeks Consolidation into District of New Jersey
While the device maker opposes consolidation, it says that the District of New Jersey would be the best venue for the MDL if the panel decides to centralize the cases.
“Defendants are headquartered in New Jersey, and many of the relevant documents and witnesses are located there,” the response states. “As such, coordinating the actions in the District of New Jersey will facilitate swift and convenient discovery and allow Plaintiffs access to the court and Ethicon’s pertinent corporate witnesses in one trip.”
Ethicon also says that the design and launching of Physiomesh took place primarily in New Jersey and that the district is equipped to handle a products liability MDL.
“This district has extensive experience in pharmaceutical and medical device litigation,” it says. “Moreover, it has one of the fastest median times among all district courts from filing to disposition in civil cases—8 months—and only 6% of the civil cases currently pending in the district are more than three years old.”
Plaintiffs, on the other hand, seek centralization in the District of Florida. Not only does it currently have the most number of cases filed but the majority of cases in the country are situated in the Southeast. This would make it more convenient for all parties to access, plaintiffs say.
The JPML will hear oral arguments on May 25, 2017.