Request to Centralize Federal Ethicon Physiomesh Lawsuits Granted

The U.S. Judicial Panel on Multidistrict Litigation (JPML) has granted the request of plaintiffs suing Ethicon over complications that arose from its synthetic hernia mesh product to create a centralized docket for federal lawsuits related to Physiomesh.

Dozens of cases pending across 10 federal districts will be transferred into a multidistrict litigation (MDL) docket in the U.S. District Court for the Northern District of Georgia where Judge Richard W. Story will preside over his first MDL.

The panel responded to a motion filed March 9 that requested the transfer to promote judicial efficiency.

“Having a single judge preside over the pretrial proceedings in these cases would promote efficiency and economy by avoiding duplicative discovery from similarly situated claimants who have asserted common product liability claims, will prevent potentially inconsistent pretrial rulings regarding factual and legal issues common to all cases, and will help preserve the resources of the parties, their counsel and the judiciary by eliminating redundancy of effort,” the plaintiffs attorneys wrote.

The panel agreed with the plaintiffs.

“On the basis of the papers filed and hearing session held, we find that these actions involve common questions of fact, and that centralization in the Northern District of Georgia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation,” the June 2 transfer order states.

Patients implanted with Ethicon’s Physiomesh have claimed that the device, which is used during hernia repair surgeries, caused unexpected complications and injuries. The panel goes on to say that many of plaintiffs specifically point to the multi-layer coating as a source of the problems because it may have prevented adequate incorporation into the body.

Ethicon Opposed Consolidation of Physiomesh Cases

In an April 13 response to the JPML, Ethicon expressed its opposition to the transfer order, arguing that the cases are too disparate, an MDL could increase the number of claims filed and consolidation would not be more convenient.

“Although Plaintiffs may point to hernia recurrence as the common injury that binds these cases together, a closer look at the complaints shows a wide variety of alleged injuries, such as abdominal abscesses and intestinal fistula, bowel puncture, erosion and bowel resection, bowel adhesions, fistula and infection, and recurrent inguinal hernia,” Ethicon said in opposition.

The panel responded to those points in its transfer order.

“Ethicon argues 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 wrote. “The Panel has rejected the argument that products liability actions must allege identical injuries to warrant centralization.”

The panel also disagreed with the claim that creating an MDL would result in more non-meritorious lawsuits because it says an MDL would likely be in a better position to properly address any meritless claims.

In its motion, Ethicon said there was no reason to centralize the cases “because the parties are perfectly capable of working cooperatively to obtain the same efficiencies that centralization is designed to achieve.” However, the panel decided due to the number of law firms and district courts involved that informal coordination would not be a practical solution.

JPML Chooses Northern District of Georgia for Docket

In the consolidation request, plaintiffs argued that the litigation be moved to the Middle District of Florida, which had the most number of cases and one of the first filed in the country. Ethicon wrote that the District of New Jersey would be the best venue.

The panel decided to compromise and select the Northern District of Georgia because all parties support or did not oppose centralization there.

“This district is accessible for domestic and international parties and witnesses, and is centrally located to many of the pending actions,” it wrote. “Two constituent actions and two potential tag-along actions are pending in this district.”