The U.S. Judicial Panel on Multidistrict Litigation (“JPML” or “The Panel”) is a body of seven federal district judges who manage multidistrict litigation, meeting on a bimonthly basis to consider requests to establish MDLs. The Panel has the authority to determine whether civil actions pending in two or more federal judicial districts should be transferred to a single federal district court for pretrial proceedings.
The Panel is holding its next MDL hearing on Thursday, May 25, 2017, at the John H. Wood, Jr. United States Courthouse in San Antonio, Texas.
One noteworthy argument to be heard is in regards to MDL No. 2782, a set of products liability claims involving the Physiomesh Flexible Composite (hereinafter “Physiomesh”), a synthetic mesh hernia repair device designed, manufactured and sold by Ethicon, Inc. and Johnson & Johnson. Plaintiffs are moving to transfer 18 product liability actions pending in 9 federal district courts to the Middle District of Florida, or in the alternative, to the Southern District of Illinois, for coordinated and/or consolidated pretrial proceedings.
The argument favoring the “centralization” of multiple actions maintains that such action will promote just and efficient conduct of these actions, serve the convenience of all parties and witnesses, promote the interest of justice, conserve judicial resources, reduce litigation costs, avoid potentially inconsistent pretrial scheduling orders and substantive rulings, and will eliminate unnecessary duplicative discovery.
Physiomesh Litigation Overview
Each of these 18 actions allege that the defendants Ethicon, Inc. and Johnson & Johnson defectively designed and manufactured the Physiomesh products, and failed to provide appropriate warnings and instructions with these devices. The Physiomesh has a unique design, which has never been used in any other hernia repair product. The product was represented and promoted by the Defendants to prevent or minimize adhesion and inflammation and to facilitate incorporation and fixation of the mesh into the abdomen. However, the Plaintiffs allege that the design prevented adequate incorporation of the mesh and caused or contributed to a variety of serious complications. Plaintiffs additionally claim that the Physiomesh was insufficient to withstand normal abdominal forces. This often resulted in herniation through the mesh itself, recurrent hernia formation and/or rupture and deformation of the mesh.
The Plaintiffs people who received implants of the Physiomesh product for hernia repair, and where applicable, their spouses. All of the plaintiffs suffered serious and often permanent physical injuries from the implantation of the Physiomesh. They often required additional surgeries, additional medical expenses, and unresolved medical complications. Where applicable, plaintiffs’ spouses have alleged loss of consortium.
Defendants Withdraw Product from Market
The defendants ultimately withdrew the Physiomesh device from the market in May 2016, when Ethicon, Inc. issued an Urgent Field Safety Notice. Unpublished data from two large independent hernia repair registries indicated that recurrence and reoperation rates after laparoscopic ventral hernia repair using Ethicon Physiomesh were noticeably higher than the average rates of hernia mesh issues among other products in the market. Plaintiffs intend to establish that Ethicon’s decision to withdraw Physiomesh from the market was a direct consequence of the frequency and severity of the complications experienced with this product worldwide.
There were more than 330,000 Physiomesh devices sold worldwide and it is believed that 50% of those products were sold in the U.S. It is anticipated that hundreds of additional Physiomesh lawsuits will be initiated in the near future.