“The court is trying to resolve as many Kugel Mesh lawsuits as they can nationwide and as they are resolved they are being dismissed off the docket every week,” says Potts. “Although the multidistrict litigation [MDL] is winding down, new cases continue to be filed.”
Potts was co-counsel and handled key witnesses (including the plaintiffs’ chief liability expert witness, a bioengineer) in the first Kugel Mesh Hernia Patch bellwether case tried in the US as part of the federal MDL. The jury found that the mesh manufacturer, Davol Inc., a division of C.R. Bard, was negligent in the design of its Composix Kugel patch. However, they found that plaintiff John Whitfied did not prove that the negligent design directly contributed to or caused his hernia repair issues.
“John Whitfield was implanted with recalled mesh that buckled and folded over in his body,” explains Potts. “There are many Kugel mesh cases that involve the ring breaking, which is the polyester around the edge of the mesh designed to make it lie flat. Litigation started because these rings were breaking and popping out of the mesh.”
After a trial that lasted four weeks, the nine-person jury unanimously found that the Composix Kugel Hernia Patch, which was placed in over 100,000 patients, was defective and unreasonably dangerous due to its propensity to change shape and buckle in the body.
“The majority of cases in the Kugel Mesh MDL were like this one,” says Potts. “The jury had special questions to answer and we went through a step-by-step process. First, we had to determine if the mesh was defective and reasonably dangerous and the jury found that indeed it was - the Composix Kugel patch did buckle very significantly. However, they didn’t find that the buckling of the mesh in Mr. Whitfield’s case caused his problems. Instead, there was evidence that he had a pre-existing medical condition so there was a split decision, which meant no settlement. For the plaintiff to get compensation, the jury would have also found that the defect causes injury, which is the final stage.”
Potts says that another Kugel Mesh plaintiff was awarded 1.5 million in damages. Christopher Thorpe’s lawsuit claimed that he suffered severe internal injuries and a sepsis infection when the hernia patch broke inside of him. “There were a few cases tried in Rhode Island later,” adds Potts. “They both involved the rings breaking and both resulted in verdicts for the plaintiff. “
Shortly after those two lawsuits (out of about 3,600 Kugel hernia mesh claims) were tried in 2011, Bard first reported a tentative settlement.
An estimated $184 million will be paid to resolve the product liability lawsuits, which started after the Kugel Mesh patch was recalled in 2005. The lawsuits allege that Bard’s mesh caused serious medical complications including bowel perforation, sepsis, intestinal fistulas and abdominal abscess formation. This amount will pay plaintiffs about $70,000 each, which many victims are calling “a slap in the face.”
However, as attorney Potts says, claims are still coming in. “People received these Kugel mesh hernia devices for a number of years before various recalls that started in 2005. It is possible that people have yet to develop a problem because it can take years for the mesh to fail.
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Derek Potts is the Managing Partner of The Potts Law Firm, LLP, a national mass tort practice based in Houston, Texas. Derek was a member of the Plaintiffs Steering Committee for the Kugel Mesh litigation and trial counsel for the first bellwether trial where the device was found by the jury to be defectively designed. He currently is Plaintiffs’ Co Lead Counsel in three Trans Vaginal Mesh MDLS including C.R. Bard, Mentor OB Tape and Neomedic.