Foulston Law Office Blog

Monday, February 3, 2014

Transvaginal Mesh Lawsuits Heating Up—Litigation Update


New York, NY:
 Over 40,000 transvaginal mesh lawsuits have been filed in federal court involving vaginal mesh pelvic repair systems manufactured by multiple medical device companies. While some claims have been settled, a staggering 3,000 TVM lawsuits a month are still being filed.

Thousands upon thousands of women claiming injuries due to transvaginal mesh products have filed in multidistrict litigation in federal court in Charleston, West Virginia. As of January 2014, the following manufacturers have either settled some claims, begun bellwether trial proceedings or are scheduled for trial:

(Bellwether trials take place to help both plaintiffs and defendants by determining how juries are likely to respond to evidence and testimony presented. These trials are the norm in complex medical device litigation, particularly in the case of transvaginal mesh products involving multiple medical device companies. Representative cases for bellwether selection include women aged 40 and 60 years old at the time when they had the pelvic mesh surgeries, with three or less revision surgeries. A successful outcome typically indicates a global settlement.)

American Medical Systems (AMS)

AMS transvaginal mesh cases were scheduled to begin last December. AMS has already agreed to settle a number of cases for $54.5 million, and the company is expected to attempt a global settlement in many more of the 6,000 cases pending in federal court in West Virginia before Judge Joseph R. Goodwin (In re: C.R. Bard, Inc., Pelvic Repair System Products Liability Litigation; MDL-2187, U.S. District Court for the Southern District of West Virginia).

According to court documents, at least two bellwether trials resulted in compensation for the plaintiff. In August 2013, a jury awarded plaintiff Donna Cisson about $2 million in damages and plaintiff Wanda Queen settled out of court for an undisclosed sum.

Court documents also show that more than 14,000 vaginal mesh lawsuits now pending in the Southern District of West Virginia involve AMS. Every complainant alleges that AMS was used to treat pelvic organ prolapse or stress urinary incontinence, but their TVM surgery resulted in mesh erosion, organ damage, chronic pain and other serious vaginal mesh complications.

The first AMS bellwether trial is scheduled to begin on April 7, 2014. The second trial is set for May 5, 2014.

According to a Bloomberg report (September 30, 2013), Bard in September joined Endo Health Solutions (American Medical Systems), Boston Scientific, Cook Medical Systems and Coloplast in talks to settle tens of thousands of federal and state vaginal mesh lawsuits.

C.R. Bard

C. R. Bard, the maker of Avaulta transvaginal mesh, settled the first of four bellwether trials (U.S. District Judge Joseph R. Goodwin presiding) last summer with a $2 million verdict including punitive damages. Bard was accused of failing to warn women about the risk of side effects. The second trial resulted in an agreement to settle during the first trial day. The third trial was voluntarily dismissed by the plaintiff. Another bellwether trial slated for January 10, 2014 has been postponed until May 19, 2014 (Jones v. C.R. Bard, Inc., No. 2:11-cv-00114, U.S. District Court for the Southern District of West Virginia).

More than 6,500 claims have been filed against Bard on behalf of women who suffered severe side effects allegedly due to its Avaulta mesh. Court documents indicate that an additional 940 Avaulta transvaginal mesh lawsuits pending in a multicounty litigation are underway in New Jersey (In re: Pelvic Mesh Litigation/Bard, No. L-6339-10).
Boston Scientific

Thousands of Boston Scientific Corp. (MDL No. 2326) transvaginal mesh lawsuits are pending in the Southern District of West Virginia, and the first Boston Scientific bellwether trial is slated for March 10, 2014. The second is set for trial on July 14, 2014.

A Pretrial Order dated December 19, 2014 has established that the Court schedule two “waves” of 100 cases each in discovery in the proceeding. The parties have each been directed to select 50 cases for each wave, with the selections for the first wave due by January 21, 2014. Second wave case selections are to be submitted by May 21, 2014. (In re: Boston Scientific Corp., Pelvic Repair Systems Products Liability Litigation – MDL No. 2326.)

The cases are limited to women who received only the Boston Scientific Obtryx, Advantage/Fit, Pinnacle or Uphold products, excluding cases where multiple different products were used.

Ethicon Gynecare

Johnson & Johnson’s subsidiary Ethicon Gynecare transvaginal mesh lawsuits are scheduled for trial in August 2014. Ethicon’s Prolift mesh went to trial in New Jersey and ended with the jury awarding the plaintiff $11 million in compensatory and punitive damages (In re: Pelvic Mesh/Gynecare Litigation, No. 6341-10; In re: Pelvic Mesh Litigation/Bard, No. L-6339-10).

The Ethicon MDL in West Virginia federal court is preparing for its first bellwether trial in February 2014, which involves about 13,000 cases. The selected case for the trial involves plaintiff Carolyn Lewis ( Lewis, et al. v. Johnson & Johnson, et al., 2:12-cv-04301). The Ethicon MDL is In re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation MDL no. 2327 in the U.S. District Court for the Southern District of West Virginia.

As well, Ethicon is being investigated by government agencies for making false claims and engaging in deceptive marketing of its surgical mesh. According to documents filed in In re: Ethicon Inc., Pelvic Repair System Products Liability Litigation; MDL-2327, U.S. District Court for the Southern District of West Virginia, on January 23, 2014, the federal court overseeing the multidistrict litigation involving vaginal mesh products manufactured and sold by Ethicon heard arguments related to a motion accusing Ethicon and its parent company, Johnson & Johnson, of either losing or destroying “at least tens of thousands, maybe hundreds of thousands, of documents that likely contain information relevant to plaintiffs’ claims.”

Attorneys are closely watching bellwether trials - as they believe these cases will have an important impact on state and federal cases.

February 1, 2014, 08:00:00AM. By Jane Mundy

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