By Joe Fantini August 10, 2018

A panel of federal judges has consolidated 53 hernia mesh lawsuits, sending all federally-filed claims against C.R. Bard and its subsidiary Davol Inc. to the U.S. District Court for the Southern District of Ohio. In Columbus, the coordinated cases will be presided over by Chief Judge Edmund A. Sargus, who has previously overseen several large Multi-District Litigations.

JPML Consolidates Bard – Davol Polypropylene Mesh Cases

Nearly 70 lawsuits, known as “tag-along” actions are expected to be transferred to the Columbus federal court in the near future. The newly-coordinated litigation will include claims filed over a wide array of Bard and Davol-made mesh products manufactured using polypropylene mesh, including the Perfix Plug, 3D Max and Ventralex ST hernia mesh patches.

In an August 2 ruling, the Judicial Panel on Multi-District Litigation held that the cases share “common questions of fact,” making centralization an appropriate option. In their lawsuits, injured patients accuse Bard and Davol of using a defective material, polypropylene, to manufacture their hernia mesh products. The plaintiffs allege that polypropylene, a form of plastic, has no business inside the human body, noting an apparently-high rate of chronic pain, organ adhesions and organ erosion.

How Multi-District Litigation Works

In Columbus, the actions, along with any similar federal cases filed in the future, will move through pre-trial proceedings as a group. The process of discovery, in which evidence is gathered and exchanged between the parties, will be coordinated for the benefit of all parties involved. Motion practice will proceed in a similarly-coordinated manner, allowing the parties to file motions that will apply to each case.

As the litigation progresses, Judge Sargus very well may attempt to push the cases toward settlement. After pre-trial proceedings have been completed, the cases can be remanded (transferred back) to their original courts for trial proceedings.

In many Multi-District Litigations, upon the completion of discovery, the court will schedule a number of the prepared cases for trial, which will allow the parties to understand the strength and weaknesses in their cases. Oftentimes, after a jury verdict, these “bellwether trials” help shape the settlement negotiations, as both sides work to a mutually-agreeable resolution.

Panel Leaves Composix Kugel Question Unanswered

Both plaintiffs and C.R. Bard supported the idea of consolidation, but a dispute arose as to whether or not cases involving Bard’s Composix Kugel Hernia Patch should be included. In 2011, Bard settled over 2,000 cases involving the mesh product, which plaintiffs said was defective and dangerous, for $184 million.

In the present case, plaintiffs argued in their petition to the panel that claims involving Composix Kugel mesh patches should be excluded from the coordinated litigation. C.R. Bard agreed that coordination was appropriate, but only if the Composix lawsuits were incorporated as well.

For now, the Judicial Panel on Multi-District Litigation has left this question unanswered. “Whether to include the [Composix Kugel] Patch cases in centralized proceedings is a question not currently before the Panel,” it writes, “as none of the cases on the motion involve the CK Patch.”

The Panel’s members say they will consider the issue anew in the process of transferring individual cases to the United States District Court for the Southern District of Ohio.