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Two Arguments to Watch in Physiomesh Bellwether Trials

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Bellwether Trials a Contest between “Defective Design” and “Intervening Cause” Arguments

Atlanta, GAAs the Ethicon Physiomesh hernia patch lawsuits start to go to trial in January 2018, all eyes will be on the fate of two competing arguments. Plaintiffs in the cases centralized as In RE: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation will argue that the mesh was defectively designed. Defendants, Johnson & Johnson and Ethicon, will argue that patients’ severe organ damage was caused by something else. Early bellwether trials are always important because they give an indication of the strength of the cases and the likelihood and probable size of a settlement offer. The particular future for these surgical mesh lawsuit plaintiffs hangs on which version of reality the court finds more compelling.

In this Corner, “Defective Design”

On one hand, Physiomesh was approved in April 2010 under the FDA’s 510(k) fast-track process because it was similar to products Ethicon already had on the market. On the other hand, Ethicon voluntarily recalled one of those products, Proceed surgical mesh, only six months later because layers of the mesh separated after it was implanted. In 2016, Ethicon also voluntarily recalled Physiomesh Flexible Composite Mesh after independent studies noted unusually high failure rates. Ethicon was unable to say why.

But plaintiffs in the consolidated cases may have the answer, contending that “the multi-layer coating [on the mesh] … prevented adequate incorporation of the mesh and caused or contributed to a variety of serious complications. In addition, the polypropylene mesh portion of the Physiomesh was insufficient to withstand normal abdominal forces, which often resulted in herniation through the mesh itself, recurrent hernia formation and/or rupture and deformation of the mesh itself.” The patch folded, moved and caused further damage.

And, In This Corner, “Intervening Cause”

Ethicon will probably argue, as it did in opposition to consolidation, that individual issues, like age, obesity, activity or the lack thereof played a greater role in the injuries. The argument did not succeed in the context of the motion, but that’s not dispositive at trial. The strategy of suggesting another possible cause is designed to create uncertainty. It can be very effective in product liability cases because judges and juries are not scientific experts. The defendant’s counsel has only to create enough doubt, without actually proving another cause.

As the Physiomesh hernia patch lawsuits go to trial, patients and their attorneys will closely monitor the court’s reaction to the defective design and intervening cause arguments. Much hangs in the balance.

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