Pretrial discovery is now underway in the federal multidistrict litigation involving nearly three dozen power morcellator lawsuits filed against Ethicon, Inc. According to an Order issued in the U.S. District Court, District of Kansas, on January 4th, priority will be given to cases filed on behalf of women who are “in extremis.”
“Case-specific discovery for in extremis cases has priority and may commence any time on or after January 11, 2016,” the Order states. “A person will be considered ‘in extremis’ when she is expected to reach, within the next twelve months, a state or condition of difficulty in testifying competently in a deposition or being no longer capable of testifying competently in a deposition and is unlikely to recover sufficiently to provide competent testimony at a later date.”
Court documents indicate that at least 34 morcellator lawsuit have been filed in the District of Kansas on behalf of women who allegedly experienced the spread of uterine sarcoma and other gynecological cancers due to the Ethicon’s Gynecare morcellator products. Plaintiffs claim that the Johnson & Johnson subsidiary failed to warn patients and doctors that the devices could disseminate undetected uterine cancer cells into the peritoneal cavity during minimally-invasive hysterectomies and myomectomies. The dissemination of these cells can quickly upstage the cancer to its most advance stage, greatly reducing a woman’s chances for long-term survival.
A number of other morcellator manufacturers, including Karl Storz, Richard Wolf Medical Instruments, and Gyrus ACMI, are named defendants in similar morcellator cancer claims. However, unlike the Ethicon docket, those lawsuits have not been centralized in a single federal court.
The morcellator litigation has been growing since late 2013, and gained momentum in April 2014 when the U.S. Food & Drug Administration (FDA) discouraged doctors from using the devices in uterine surgeries because of their potential to spread undiagnosed cancer cells. In November 2014, the agency went a step further and contraindicated the use of power morcellators in the majority of women who require a hysterectomy or myomectomy.
Ethicon once dominated the morcellator market. But the company decided to stop selling the devices in July 2014, amid mounting evidence of their dangers.