The Judicial Panel on Multidistrict Litigation (JPMDL) created MDL 2782 to hear 70 hernia mesh actions pending against Johnson & Johnson and Ethicon, Inc. from 36 federal district courts before Judge Richard W. Story in the Northern District of Georgia.
The case is In Re: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation.
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.
- Deformation of the mesh.
“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,” the JPMDL said.
Panel rejects defense arguments
The defendants opposed creation of the MDL.
Ethicon argued that individual factual issues will predominate with respect to the wide variety of alleged injuries, causation, and the timing of each plaintiff’s injury as it relates to the warnings given with the product and the applicable statute of limitations.
“The Panel has rejected the argument that products liability actions must allege identical injuries to warrant centralization. See, e.g., In re: Cook Medical, Inc., IVC Filters Mktg., Sales Practices & Prods. Liab. Litig., 53 F. Supp. 3d 1379, 1381 (J.P.M.L. 2014). Indeed, “[t]hough these actions present individual issues of fact, this is usually true of products liability cases and medical device cases, in particular.” Id. at 1380 (citation omitted); see also In re: Wright Med. Tech., Inc., Conserve hip Implant Prods. Liab. Litig., 844 F. Supp. 2d 1371, 1372 (J.P.M.L. 2012) (“[A]lmost all injury litigation involves questions of causation that are case- and plaintiff-specific. Such differences have not been an impediment to centralization in the past.”).
As in other medical device cases centralized by the JPMDL, these actions “share paramount issues concerning the design, manufacture, testing, and marketing of a single medical device.” In re: Zimmer Durom Hip Cup Prods. Liab. Litig., 717 F. Supp. 2d 1376, 1378 (J.P.M.L. 2010).
On several occasions, the JPMDL has rejected the argument that it should deny centralization because creating an MDL would proliferate non-meritorious claims. See In re: Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006) (“The response to such concerns more properly inheres in assigning all related actions to one judge committed to disposing of spurious claims quickly.”); see also In re: Cook IVC Filters, 53 F. Supp. at 1381 (“the transferee court handling several cases in an MDL likely is in a better position—and certainly is in no worse position than courts in multiple districts handling individual cases—to properly address meritless claims”). Moreover, whether particular claims are without merit is a matter “more appropriately addressed to the court which oversees those claims.” In re: Seroquel, 447 F. Supp. 2d at 1378.
Unique 5-layer design
Physiomesh is a synthetic mesh hernia repair device is an implantable synthetic surgical mesh product sold for use in hernia repair implanted through laparoscopic herniorrhaphy.
Physiomesh has a unique design incorporating five distinct layers: two layers of polyglecaprone-25 (“Monocryl”) film covering two underlying layers of polydioxanone film (“PDS”), which in turn coat a polypropylene mesh. This design has never been used in any other hernia repair product sold anywhere in the world.
The multi-layer coating was promoted by the defendants to prevent or minimize adhesion and inflammation and to ease incorporation and fixation of the mesh into the abdomen. However, the plaintiffs intend to prove that the multi-layer coating instead prevented adequate incorporation of the mesh and caused or contributed to a variety of serious complications.
Additional surgeries needed
In addition, the polypropylene mesh part of the Physiomesh was insufficient to withstand normal abdominal forces, which often resulted in herniation through the mesh itself, recurrent hernia formation and/or rupture and deformation of the mesh itself. The defendants ultimately voluntarily withdrew the Physiomesh device from the market in May 2016, which the plaintiffs intend to prove was a direct result of the frequency and severity of the complications experienced with this product worldwide.
The plaintiffs’ attorneys include:
- Henry G. Garrard, III, James B. Matthews and Josh B. Wages of Blasingame, Burch, Garrard & Ashley, in Athens, GA.
- Douglas A. Kreis, Bryan F. Aylstock, and Daniel Thornburgh D. Thornburgh of Aylstock, Witkin, Kreis & Overholtz in Pensacola, FL.
- Donald A. Migliori of Motley Rice in Mount Pleasant, SC.
- Jonathan D. Orent of Motley Rice LLC in Providence, RI.
- Joseph A. Osborne of Osborne & Associates Law Firm in Boca Raton, FL.