Mesh Litigation & The MDL

 

Most lawsuits against the manufactures of polypropylene mesh implants are consolidated in The United States District Court - Southern District of West Virginia and are being presided over by The Honorable Joseph R. Goodwin. There is a website page dedicated entirely to updates regarding the MDL by manufacturer here:

Mesh Multi-District Litigation Homepage

There is also a daily, weekly and monthly calendar of activities in Judge Goodwin's court here: 

Judge Goodwin's Court Calendar


 

FAQs ABOUT MESH LITIGATION:

(This advice is not professional legal advice. It is provided for educational purposes only. Consult your attorney.)

 

QUESTION: ARE THERE LAWSUITS FILED AGAINST MESH MANUFACTURERS?

ANSWER: YES

Many mesh-injured people have filed a lawsuit called a civil cause of action against one of the many medical device companies that manufacture polypropylene mesh implants and are cited as defendants in a United States Multi-District Litigation (MDL). The collection of lawsuits, nearing 100,000, is presided over by Judge Joseph Goodwin of The Southern District of West Virginia.

 

QUESTION: WHAT KIND OF LAWSUITS DO MESH INJURED PATIENTS FILE AGAINST MANUFACTURERS?

ANSWER: Most of these cases are filed as Product Liability causes of action and can involve numerous failures on behalf of manufacturers to adequately warn consumers, via their doctors, of all possible risks and benefits associated with the implant of medical polypropylene mesh.

Put most simply: It is the responsibility of a manufacturer or vendor of goods to compensate for injury caused by defective merchandise that it has provided for sale. 

When individuals are harmed by an unsafe product, those individuals may have a cause of action against the persons who designed, manufactured, sold, or furnished that product. There are several ways that manufacturers can be legally held responsible for injuring consumers by selling an unsafe product.

One way is by way of NEGLIGENCE, meaning that a company or an individual who had a legal obligation either omitted to do what should have been done or did something that should not have been done, and that failure to act as a reasonably prudent person would, under similar circumstances has caused harm to the plaintiff.

Another way a company can be held responsible is by MISREPRESENTATION in the advertising, sales and promotion of a product a process of giving consumers false security about the safety of a particular product, ordinarily by drawing attention away from thehazards of its use or the intentional concealment of potential hazards.

Finally, BREACH OF WARRANTY  refers to the failure of a seller to fulfill the terms of a promise, claim, or representation made concerning the quality or type of the product. The law assumes that a seller gives certain warranties concerning goods that are sold and that he or she must stand behind these assertions.

 

QUESTION: WHAT IS A MULTI-DISTRICT LITIGATION? IS IT THE SAME AS A CLASS ACTION SUIT?

ANSWER: A multi-district litigation is NOT the same as a class action suit. 

In an MDL, each plaintiff has a separate cause of action against a defendant. An MDL is meant to expedite a set of complex individual lawsuits through the judicial system more quickly. In an MDL, there is not enough similarity in questions of law or fact common to each individual plaintiff to combine the individual cases into a "Class Action" lawsuit.

Specifically, an MDL is a procedure provided by federal statute (28 U.S.C.A. § 1407) that permits civil lawsuits with at least one common Question of Fact that has been pending in different federal district courts to be transferred and consolidated for pretrial proceedings before on judge.

 

QUESTION: WHAT'S A CLASS ACTION SUIT?

ANSWER: Class Action suits are filed according to Rule 23 of the Federal Rules of Civil Procedure which defines three kinds of class actions. 

1)The first type may be brought when separate lawsuits might adversely affect other members of the class or the defendant.

2)In the second type of class action, a class seeks an injunction or some type of relief compelling the defendant either to cease a certain activity or to perform some other type of action. 

3)In the third category of class action lawsuit, there are questions of law or fact common to the entire class that predominate over questions peticular to each individual plaintiff, and a class action suit is a more efficient means to resolve the controversy.(Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L. Ed. 2d 628 [1985]).

 

QUESTION: IF MY LAWSUIT IS FILED IN THE MDL, WILL MY CASE BE TRIED BEFORE A JURY?

ANSWER: The answer to this question is a bit tricky. Some cases will receive a trial by jury, and some will not. 

The MDL is multi-faceted. Not only is it a consolidation of tens of thousands of cases under one judge, but it also serves as a venue for plaintiffs' attorneys and defendants' attorneys to try to negotiate settlement offers for distribution by defendants (mesh manufacturers) to several plaintiffs at once. 

 

QUESTION: I HAVE READ ABOUT COURT CASES THAT HAVE COME BEFORE A JURY. WILL MY CASE BE TRIED?

ANSWER: Again, the answer here is a bit tricky.

You may have heard or read about cases that were Bellwether Trials, a process by which the judicial system can gauge likely outcomes and drawbacks of similar cases. The exercise can serve as a learning experience for all involved and shed light upon the nature of future cases. Courts utilize a bellwether approach when large numbers of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload. Bellwether cases filed in the MDL are selected by "Lead Lawyers" who are in turn selected by the judge (read explanation here, as reported by @JaneAkre of MeshNewsDesk.com.

Ms. Akre also reports that, "Each of six transvaginal mesh manufacturers will face off with plaintiffs in four jury trials intended to test legal theories and determine the future of these product liability cases." (More here: http://tinyurl.com/osw8mwf)

EXAMPLE BELLWETHER TRIALS:

July 24, 2012 - Christine Scott vs. C.R. Bard (Avaulta Plus Biosynthetic Support System)

July 7, 2013 - Donna Cisson vs. C.R. Bard (Avaulta Plus Posterior BioSynthetic Support System)

June 23, 2014 - Linda Gross vs. Ethicon (Gynecare Prolift Mesh Kit)

March 5, 2015 - Coleen Perry vs. Ethicon (Abbrevo Prolene Mini Sling)

May 16, 2015 - Pamela Ailey vs. Cook Group (Surgisis Posterior Graft) - Dismissed with prejudice by the plaintiffs

(The cases against Cook Group vs. Ailey and Lingo are dismissed and will not be pursued. The next two cases scheduled, Hovey and Watkins were also dismissed with prejudice by the plaintiffs on April 16, 2015.) 

 

Additionally, some cases may have originally been filed in state and federal courts around the country, but have since been transferred to the MDL or out of the MDL (for various and specific reasons, sometimes unknown to the public).

EXAMPLE OF CASES TRIED IN STATE COURTS:

April 3, 2014 - Linda Batiste vs. Ethicon (TVT-O) - Dallas, TX presided over by The Honorable Judge Ken Molberg

Sep 8th, 2014 - Martha Salazar vs. Boston Scientific (Obtryx Transobturator Mid-Urethral Sling) - Dallas, TX (Molberg)

 

QUESTION: SO WHAT IF MY LAWSUIT IS INCLUDED IN THE MDL? WILL MY CASE BE TRIED OR SETTLED?

ANSWER: Another difficult answer with many confounding factors. For many cases, we just don't know yet.

Any plaintiff has the right and the option to "opt out" of a settlement offer if that patient deems the settlement terms to be in adequate monetarily or in other ways (Often with settlement offers, there are restrictions upon accepting the award including but not limited to: waiving your right to sue the company again over anything having to do with your mesh product; the company does not have to admit guilt or declare its product defective in design).

If a case does not go to trial and the plaintiff is, for example, one of the 20,000 women with whom Endo/AMS settled, theoretically that plaintiff could choose to "opt out," by refusing the terms of the offer. With that decision comes a new set of challenges: 1) Will an attorney be willing to take your case to trial, and of course, there is always the risk that a plaintiff who "opt-out" will not win in a courtroom setting. The risk versus potential rewards of opting out must be carefully weighed, with the consult of your attorney and family. There is no guarantee that a case removed from the MDL and taken to trial by state will have a successful outcome for the plaintiff.

 

QUESTION: SO WHAT'S THIS I HEAR ABOUT SETTLEMENT OFFERS? I HAVEN'T RECEIVED NOTICE OF AN OFFER.

ANSWER: Not all manufactures, in fact most manufactures have not yet come to a settlement agreement with their docket of plaintiffs.

With a settlement offer, each plaintiff's evidence is still considered individually, and the defendant in each cause of action is still responsible to defend their actions regarding the harm allegedly caused to each plaintiff by the manufacturer of that individual plaintiff's mesh product and that individual plaintiff's resulting adverse events, symptoms and injuries.

The result of these negotiations between plaintiff and defendant attorneys, presided over Judge Goodwin, can be that an agreement is reached in which many plaintiffs are included in a lump sum settlement offer.

Endo Health Solutions offered an $830 Million Settlement to roughly 20,000 plaintiffs last April. Read more here, from @Jane Akre, Editor at Mesh Medical News Desk: Endo Offers $830 Million to Settle.

In September of 2014, Endo offered a $1.6 Billion Master Settlement to resolve all of its outstanding mesh claims as well as the claims of its subsidiary company, American Medical System (AMS). 

 

SOURCES:

*Cornell University School of Law

*Legal Dictionary: The Free Dictionary by Farlex

*MeshNewsDesk.com

*USLEGAL.com

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