In re: MDL 2846 Davol, Inc./C.R. Bard, Inc. Polypropylene Hernia Mesh Products Liability Litigation
By Mark A. York (July 18, 2018)
MASS TORT NEXUS MEDIA) In what may become one of the largest single-defendant multidistrict litigation cases ever consolidated, the U.S. Judicial Panel on Multidistrict Litigation (JPML) hearing on consolidation is set for July 26, 2018 when the JPML will be requested to consolidate cases filed against C.R. Bard/Davol, alleging injuries related to their polypropylene hernia mesh products. See JPML Hearing Order July 26, 2018 (In re: Davol, Inc./C.R. Bard, Inc. Polypropylene Hernia Mesh Products Liability Litigation)
Lead counsel on the consolidation are Fleming, Nolen & Jez, L.L.P., Houston, Texas; Brenes Law Group, P.C., Aliso Viejo, California; Chapin Legal Group, LLC, Columbus, Ohio; and Hollis Law Firm, P.A., Prairie Village, Kansas who jointly filed the motion to consolidate on April 10, 2018.
The hernia mesh products at issue were manufactured by C.R. Bard, Inc. and its subsidiary, Davol, Inc., which control close to 70 percent of the U.S. hernia mesh implant market. There are close to 100 hernia mesh lawsuits currently pending against C.R. Bard and Davol in federal courts around the country, which is expected to increase drastically upon formal consolidation into MDL 2846.. All claims involve injuries allegedly related to the companies’ polypropylene hernia mesh implants, including the Ventralex and Perfix devices and several others, the product pool encompasses almost all Bard/Davol polypropylene hernia mesh products. Plaintiffs allege that the devices were defectively designed and caused extensive long term complications, debilitating post-surgery injuries and adverse reactions.
The motion, also supported by Bard/Davol, has proposed the U.S. District Court Southern District of Ohio, or alternatively, the Western District of Missouri, as possible venues for the multidistrict litigation. Bard alternatively requested the MDL be transferred to U.S. District Court in New Jersey or the Southern District of New York.
Discussions on Bard MDL 2846 took place with co-lead counsel Kelsey L. Stokes of Fleming, Nolen & Jez, L.L.P., Houston, Texas and Adam Evans of Hollis Law Firm, P.A., Prairie Village, Kansas.
Ms. Stokes commented: “We represent hundreds of clients that have been seriously injured by hernia mesh products manufactured by Davol/C.R. Bard. We have observed that these devastating injuries are occurring all across the United States. Because of this widespread harm, we moved for coordination and consolidation under Section 1407. We believe the suggested venues offer convenience to all parties and have docket conditions that are conducive to the most efficient path to a fair and just resolution for our clients.”
Ms. Stokes added, “Considering Davol/CR Bard is the market leader for products used in the most commonly performed surgery in the United States, this MDL has the potential to be one of the largest medical device MDLs ever. The number of cases could very well reach into the hundreds of thousands.”
Adam Evans clarified the role of revision surgeries in determining eligibility to file a claim: “Having undergone a revision surgery is not a precondition to filing a case. Nor does a revision surgery, in itself, give rise to a viable case. The question of whether or not a person has undergone a revision surgery presents a sort of false dichotomy as we evaluate these cases. All that is necessary to file a case is that a plaintiff has suffered an injury, which evidence indicates was caused by a defect in the product. A revision surgery often provides us with the evidence with which we can connect the injury with the product defect, but there are oftentimes other sources of evidence that a defective product has caused an injury.
For example, treating physicians can conduct imaging studies, nerve conduction studies, and other types of tests, the results of which would permit them to conclude that the product is causing the symptoms of which the plaintiff complains. On the other hand, regarding revision surgeries, a second surgical prodedure may result in findings that rule out the product defects as a cause of the patient’s symptoms. In the end, a medical determination that the plaintiff has been injured by the mesh in some way is generally necessary in order to justify filing.”
Both Ms. Stokes and Mr. Evans are available to discuss the Bard MDL, as well as any other questions or concerns you may have regarding hernia mesh issues in general. The list of Bard/Davol products sought to be included in MDL 2846 is fairly significant and covers almost all of the Bard polypropylene hernia mesh products.
BARD MDL 2846 POLYPROPYLENE HERNIA MESH PRODUCTS
- Composix E/X
- Composix L/P
- Ventralex ST
- Kugel Patch
- Composix Kugel
- Ventrio ST
- Marlex (AKA Flat Mesh; Bard Mesh)
- Perfix Plug
- Perfix Light Plug
- 3D Max Light
- 3D Max
Many of the complications associated with hernia repair involving mesh are multi-factorial, and any case must undergo in-depth analysis to ascertain whether the defects of a hernia mesh played a role in the complications. Here are some of the injuries which patients throughout the country are reporting following implantation of one of these hernia mesh products:
- Mesh infection
- Chronic, debilitating pain
- Mesh migration
- Mesh contracture
- Hernia recurrence (as a result of migration and/or contracture)
- Mesh rupture (aka “mechanical failure”)
- Wound dehiscence
- Fistula or sinus tract formation
- Adhesions of mesh to bowel
- Bowel perforation
- Bowel obstruction (as a result of adhesions)
There are many other types of adverse health effects which can stem from these complications, and research is ongoing as to the direct relationship between polypropylene mesh implants and other conditions such as auto-immune disorders.
Joshua S. Kincannon, Lomurro Law Firm in Freehold, New Jersey is counsel in another emerging hernia mesh litigation, the Ethicon “Multi-Layered Hernia Mesh” Litigation, which is the subject of a pending MCL application in New Jersey State Court. Mr. Kincannon stated in support of the Bard MDL 2846: “For decades, medical device manufacturers have utilized polymers that are not safe or effective for permanent implantation in the human body. The hernia mesh litigation is just another example of what happens when there is little to no oversight into how these products are designed, manufactured and sold to the public.”
The moving plaintiffs are represented by Kelsey L. Stokes and George M. Fleming of Fleming, Nolen & Jez in Houston; Adam M. Evans and C. Brett Vaughn of the Hollis Law Firm in Prairie Village, Kansas; Troy A. Brenes of the Brenes Law Group in Aliso Viejo, Calif.; and Steven C. Babin Jr. of the Chapin Legal Group in Columbus, Ohio.