Ethicon has expressed its opposition to a request that all federal lawsuits related to injuries caused by Physiomesh hernia mesh move to a single docket, according to a response submitted to the U.S. Judicial Panel on Multidistrict Litigation (JPML) last week.
Plaintiffs filed a motion with the panel on March 9 saying that all pending Physiomesh cases involve common questions of fact and consolidation would be more convenient for the parties and witnesses.
In its response filed April 13, Ethicon laid out its case for why that is not true.
Ethicon argues that the cases do not, in fact, all have similar claims. Instead, it says the plaintiffs cite a wide range of injuries.
“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 states.
The subsidiary of Johnson & Johnson goes on to say that the each complaint will merit a closer look as to why the specific injury occurred.
“For instance, each of the claimed conditions, including recurrence, has many different accepted potential causes (e.g., surgical technique) and different risk factors (e.g., medical history, concomitant injuries, obesity, smoking, age, genetics, size of hernia, infections, and chronic cough) that could independently explain the patient’s alleged injuries,” the response says, citing previous cases in which the JPML denied centralization on such factors.
Physiomesh is a type of mesh patch used during hernia repair surgeries. First approved by the U.S. Food and Drug Administration in 2010, Physiomesh was promoted as a way to reduce the risk of hernia recurrence. After reports of a higher risk of side effects, Ethicon withdrew the device from the market in 2016.
Plaintiffs Say MDL Would Promote ‘Efficiency and Economy’
There are around 18 actions currently pending in nine different federal districts. When the plaintiffs filed their motion for transfer to the panel last month, their central argument was that consolidation would make it more convenient for 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 plaintiffs said in their brief.
Ethicon responded that avoiding duplicate discovery and cooperating across parties does not necessitate the creation of a multidistrict litigation.
“There also is no reason to centralize these cases, because the parties are perfectly capable of working cooperatively to obtain the same efficiencies that centralization is designed to achieve,” Ethicon’s motion states. “These cases involve plaintiffs’ firms with whom Ethicon has worked in the past, and many plaintiffs are represented by a handful of law firms. Defendants stand ready to coordinate discovery efforts with plaintiffs’ counsel.”
Ethicon Opposes Consolidation Into Middle District of Florida
If the panel does agreement to the creation of a multidistrict litigation, Ethicon said the District of New Jersey would be the best venue.
“First, the District of New Jersey has the closest connection to the facts giving rise to these claims,” Ethicon’s response says. “To this end Ethicon’s decisions concerning the design, development, labeling, regulatory submission and clearance, and launching of PHYSIOMESH primarily took place in New Jersey and Europe.”
Convenience, the existence of at least one case in the district, experience with product liability multidistrict litigation and accessibility were other reasons given.
The plaintiffs seek consolidation into the Middle District of Florida where the most number of cases are filed, including one of the first cases in the country.
“The majority of the pending constituent cases are filed in district courts in the Southeastern portion of the United States, with 11 of the 18 cases pending in districts in the Southeast,” the request for transfer motion adds. “The Southeast is the ‘center of gravity’ for these cases. Therefore, for purposes of this litigation, the Middle District of Florida is a centrally located district.”
As an alternative the plaintiffs want the Southern District of Illinois while Ethicon prefers the Eastern District of Kentucky or the Northern District of Georgia as alternatives.
The JPML is set to hear oral arguments from both sides May 25, 2017.