A new multidistrict litigation has been established in the U.S. District Court, Northern District of Georgia, for all federally-filed hernia mesh lawsuits involving Ethicon, Inc.’s Physiomesh product. In a Transfer Order dated June 2nd, the U.S. Judicial Panel on Multidistrict Litigation (JPML) found that centralization of the federal Physiomesh docket “will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.”
Brought to market in 2010, Physiomesh is made from non-absorbable polypropylene (plastic) filaments that are woven into fabric. Each side of the polypropylene mesh is covered with an absorbable film coating, which is intended to help the patch incorporate into the body and reduce inflammation. However, plaintiffs pursuing Physiomesh lawsuits claim that this design actually prevents incorporation and increases the likelihood of serious complications.
Ethicon announced a worldwide market withdrawal of Physiomesh Flexible Composite Mesh in May 2016, after unpublished data from two European hernia registries suggested that the product was associated with higher average recurrence and revision rates compared to other meshes used in laparoscopic ventral hernia repair. The company was unable to determine the cause of this issue but noted that it could be due to product characteristics, as well as operative and patient factors. Ethicon has indicated that will not be returning the affected Physiomesh products to the market.
The JPML’s Order initially transfers 18 Physiomesh cases to the Northern District of Georgia. However, 49 additional claims currently pending in various federal courts are also eligible for transfer, as are any such hernia mesh lawsuits filed in the future. All pending cases were brought on behalf of individuals who allegedly suffered adhesions, perforations, infections, mesh erosion and other debilitating complications due to the product’s purportedly defective design.
“All of the actions share common factual questions arising out of allegations that defects in defendants’ Physiomesh hernia mesh can lead to complications when implanted in patients, including herniation through the mesh, recurrent hernia formation and/or rupture, and deformation of the mesh,” the JPML wrote. “Many plaintiffs more specifically allege that the multi-layer coating in Physiomesh prevented adequate incorporation of the mesh and caused or contributed to a variety of serious complications, and that the polypropylene mesh portion of the Physiomesh was insufficient to withstand normal abdominal forces. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel, and the judiciary.”
The Physiomesh lawsuits included in the new multidistrict litigation will now undergo coordinated pretrial proceedings, including discovery and motions practice. The court will likely convene a series of bellwether trials involving cases that are representative of others pending in the proceeding, so as to test the strength of plaintiffs’ claims. Any lawsuits not resolved via the multidistrict litigation process will be returned to their original court of filing for trial.