Federal Court Overseeing Ethicon Hernia Mesh Lawsuits Outlines Deposition Protocol

Published on November 28, 2017 by Sandy Liebhard

Hundreds of hernia mesh lawsuits filed on behalf of individuals who suffered serious complications allegedly related to Ethicon, Inc.’s Physiomesh products continue to move forward in the multidistrict litigation now underway in the U.S. District Court, Northern District of Georgia.

On November 27th, the Court entered its 5th Practice and Procedure Order, outlining a protocol to govern all the majority of depositions taken in the litigation.

Plaintiffs to Submit Witness List by March 1st

Among other things, the Order directs plaintiffs to provide a list of Ethicon witnesses (including both current and former employees) whom they seek to depose no later than March 1, 2018.

Within 14 days of receipt of plaintiffs’ witness list, defendants are to inform plaintiffs which of the witnesses have contributed documents to the document production (“custodians”) and the date of last collection for each custodian on the list.

At that point, the parties are to meet and confer in a good faith effort to address:

  • Any objections.
  • Whether the document collection for any of the custodians on the List warrants supplementation in advance of a deposition.
  • Whether plaintiffs will be seeking documents other than a custodial file with respect to a particular witness.
  • The timing of such requests in relation to production.
  • The timing and order of the depositions.
  • The method and recipient of service for each of the former company employees.

Any issues not resolved by the parties will be presented to the Court for resolution.

Physiomesh Lawsuit Allegations

Court documents indicate that more than 300 Physiomesh lawsuits are now pending in the Northern District of Georgia, where all federal injury claims involving the Ethicon hernia mesh products are undergoing coordinated pretrial proceedings.

Physiomesh is a non-absorbable polypropylene, composite mesh patch that features a multi-layer design intended to encourage incorporation into the body and reduce inflammation. However, plaintiffs who have filed hernia mesh lawsuits against Ethicon claim that this configuration actually prevents the mesh from incorporating and increases the likelihood that Physiomesh recipients will suffer adhesions, perforations, infections, mesh erosion, hernia recurrence, and other serious complications that result in the need for hernia revision surgery.

Ethicon announced a worldwide market withdrawal of its Physiomesh Flexible Composite Mesh product in May 2016, after unpublished data from two European hernia registries indicated that the device was associated with higher average recurrence and revision rates compared to other meshes used in laparoscopic ventral hernia repair.

Ethicon was unable to determine exactly why this was occurring, and has indicated that it will not be returning the withdrawn hernia mesh products from the market.

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