Plaintiffs who filed federal lawsuits against Ethicon over claims that its Physiomesh medical device used in hernia repair caused unexpected injuries are asking the U.S. Judicial Panel on Multidistrict Litigation to consolidate cases into a single docket.
In a motion filed with the panel March 9, the plaintiffs asked that all future cases related to Physiomesh injuries and those currently pending across nine federal districts be transferred U.S. District Court for the Middle District of Florida. As an alternative, they request the cases be transferred to the U.S. District Court for the Southern District of Illinois.
The plaintiffs argue that all the cases involve many common questions of fact and having them in a single court would make it more convenient for the parties and witnesses.
“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 plaintiff’s brief states.
Ethicon’s Physiomesh is a synthetic mesh used to repair hernias by patching up the weak spot in the abdominal wall. The mesh is often touted for reducing the risk of hernia recurrence in patients, but Physiomesh has been the subject of multiple lawsuits and complaints over the years.
According to the brief, 18 Physiomesh lawsuits are currently pending in federal courts around the United States, including six in the Middle District of Florida, two in the Southern District of Illinois, two in the District of Colorado, two in the Northern District of Georgia and one in six other U.S. District Courts.
The plaintiffs want all the cases to be transferred to the Middle District of Florida because of its favorable docket conditions among other advantages.
“From a practical standpoint, the Middle District of Florida is uniquely situated as the appropriate forum to handle these cases because that Court has the most constituent cases filed, and one of the first-filed cases in the country,” according to the brief.
As an alternative, they want the cases to be transferred to the Southern District of Illinois under Judge David Herndon, who has substantial product liability multi-litigation experience.
Countless More Physiomesh Lawsuits Expected
According to the plaintiffs, an untold number of cases may still make it to the courts because hundreds of thousands of Physiomesh devices were sold around the world.
“Upon information and belief, there were more than 330,000 Physiomesh devices sold worldwide, and Plaintiffs believe approximately 50% of those products were sold in the United States,” they said. “It is the expectation of the undersigned that there will be hundreds of additional cases filed in the near future involving these products.”
More lawsuits continue to be filed against Johnson and Johnson and its subsidiary Ethicon over injuries related to Physiomesh. In February, Connie Franklin filed a lawsuit in the U.S. District Court for the Middle District of Georgia because she claims Physiomesh caused her to develop serious complications.
“The mesh was densely adhered to the loops of Ms. Franklin’s intestines,” according to the lawsuit. “Ms. Franklin underwent a prolonged surgical procedure to attempt to remove the Physiomesh from her intestines and to remove the mesh that failed to incorporate into the abdominal facsia [sic]. Portions of the Physiomesh could not be removed, and remain in Ms. Franklin’s body.”
History of Physiomesh Defects
Ethicon’s Physiomesh was first approved by the U.S. Food and Drug Administration for use on April 9, 2010, using the agency’s 510(k) approval process. This allows a device maker to bring something to the market without clinical trials as long as it is similar to another device already on the market.
Over the next few years, the device was implanted in hundreds of thousands of people around the world, but complaints about complications began mounting. Then, in 2016, Ethicon announced a recall of Physiomesh in Europe and other countries after data suggested that the device was associated with a higher risk of recurrence.
While the mesh was recalled in Europe, it was only pulled under a voluntary market withdrawal in the United States. Since then, more and more people have been coming forward to sue the makers of Physiomesh for making defective devices and failing to warn the public of risks.
Ethicon is scheduled to face its first trial regarding Physiomesh on Jan. 22, 2018, in the U.S. District Court for the Southern District of Illinois.