Judge Goodwin, who oversees the Ethicon mesh pelvic repair system multidistrict litigation in West Virginia, has consolidated 26 actions for trial on the issues of design defect, negligent design, and strict liability. The judge ruled that consolidation is warranted because the cases involve common witness and identical evidence.
The plaintiffs in these actions, all West Virginia residents, were implanted with the Ethicon TVT, a mesh product used to treat stress urinary incontinence. All of the surgeries were performed in West Virginia. Plaintiffs have each asserted claims of breach of express warranty, breach of implied warranty, defective product, design defect, failure to warn, manufacturing defect, negligence, and punitive damages.
Judge Goodwin concluded that the express language of Rule 42 warrants consolidation of Plaintiff’s design defect claims. “First, because the plaintiffs are West Virginia residents and had their surgeries at hospitals in West Virginia, the cases solely implicate West Virginia law,” the Judge stated. “Moreover, this consolidation applies only to the plaintiffs’ design defect claims, which are uniform across the above – styled cases. Second, the facts giving rise to the plaintiffs; design defect claims are, in relevant part, identical with the same device, the TVT, which was manufactured by the same defendant, Ethicon. According to the master Complaint, the plaintiffs have also suffered similar injuries following implantation of the TVT.”
These alleged injuries include blood loss, chronic nerve damage, chronic pelvic pain, fistula, inability to avoid, infection, inflammation, intercourse, mesh erosion, organ perforation, pain during intercourse, pelvic floor damage, scar tissue, shortening of the vagina, and urinary problems, the Judge noted.
“In light of these common factors, the two difference among the cases- who implanted the product and when- are of little consequence,” Judge Goodwin stated. He further held: “The implanting physicians, through different, prescribed the same medical device, the TVT, and performed the same surgical procedure on their patients. Furthermore, the physicians’ judgment or conduct has not been questioned in these cases, and no plaintiff has raised a claim of medical malpractice. As a result, I do not find the difference in physician to be a relevant variable in determining consolidation under Rule 42.”
The judge concluded: “In sum, the common issues of law and fact outweigh the incidental differences. The court can mitigate any confusion arising from these differences through carefully crafted jury instructions and special interrogatories.”
Moreover, Judge Goodwin held that when considering whether consolidation is appropriate, courts must consider the factors set forth in Arnold v. Eastern Airlines Inc., 681 F.2d 186, 192, 4th Cir. 1982. These factors are “whether the specific risks of prejudice and possible confusion are overborne by the risk of inconsistent adjudications of common factual and legal issues; burden on the parties; witnesses and available judicial resources posed by multiple lawsuits; the length of time required to conclude multiple suits as against a single ones; and the relative expenses to all concerned of the single trial. multiple-trial alternatives.” Judge Goodwin found that the Arnold factors support consolidation of the design defect claims in the cases at issue.
“Also, given the commonality among the cases, the burden on the parties is minimal. Indeed, this consolidation – on the discrete issues noted above – will save the parties the substantial cost of litigating multiple separate trials on these issues and, potentially, all remaining issues,” the judge found. Judge Goodwin noted that the cases “involve common questions of fact, and centralization will serve the convenience of the parties and promote the just and efficient conduct of this litigation.”
Judge Goodwin further noted that “the length of time required to conduct a single consolidated trial on the discrete issue of design defect is sight compared to the time required to conduct 26 separate trials on all issues, particularly where, as here, the issues to be tried involving design defect are the most time consuming.” Finally, “the relative expenses to all concerned” is reduced by consolidating the design defect claims”, the Judge concluded.