Bellwether lawsuits shape a huge MDL
More than 2,000 Ethicon Physiomesh lawsuits are pending in the Northern District of Georgia, where all federally filed claims have been centralized for coordinated discovery and other pretrial proceedings. The ten bellwether cases, selected by plaintiffs’ and defendant’s counsels are:
- James Bovian – Civil Action No. 1:17-cv-04840-RWS;
- Jim Crumbley, Jr. – Civil Action No. 1:18-cv-00748-RWS;
- Connie Franklin – Civil Action No. 1:17-cv-02080-RWS;
- Rick Keup – Civil Action No. 1:18-cv-00675-RWS;
- Terrence Murray – Civil Action No. 1:17-cv-04885-RWS;
- Zondra Davis – Civil Action No. 1:18-cv-00397-RWS Case 1:17-md-02782-RWS Document 452 Filed 05/10/19 Page 1 of 5 2;
- William Horton – Civil Action No. 1:18-cv-00067-RWS;
- Danielle Guffey – Civil Action No. 1:18-cv-00402-RWS;
- Dana Privette – Civil Action No. 1:18-cv-00624-RWS; and
- Jeffrey Smith – Civil Action No. 1:17-cv-05031-RWS.
The first five are plaintiff selections, and the second five are defense selections. It is not clear which trials will begin first, but the schedule for pre-trial processes for each of the selected cases may be summarized as follows:
- Currently ongoing: plaintiff’s and defendant’s attorneys must disclose expert disclosures, reports and rebuttal material, so that expert discovery may be completed by December 20, 2019.
- On or before December 13, 2019: the Court will determine the selection and timing of the individual 10 bellwether cases.
- Late winter and early spring 2020: arguing of Daubert motions, which may be used to challenge whether an expert witness’ testimony is based on scientifically valid reasoning and whether it has been properly applied to the facts at issue.
- April 20, 2020: First trial begins.
What to watch for in the wind-up
It is too early to start the popcorn, but while court watchers and patients who suffer from surgical mesh complications wait for April, one thing is becoming clear – these trials are going to be battles of dueling experts.
There are many ways in which expert witnesses or expert reports may be questioned. The first may be to ask about academic or professional qualifications. Should a biologist or a chemist be believed when he or she testifies about medicine? It can be a close question.
It does not particularly matter that an expert is paid by one side or another. Nor does it matter that the expert typically testifies for the medical industry or the patient side of things. But it may matter if the expert has been seriously questioned on a relevant issue in another trial. That may speak to the issue of overall believability.
What about the scientific reports on which experts rely? Who produced them? Was it produced by a neutral scientific organization or was it industry research that the FDA relied on when approving the use of a medical device or a drug? Were there long-hidden reports, as appears to have been in the Johnson & Johnson Baby Powder lawsuits?
This is the long digging process through which Ethicon Physiomesh lawsuits will now go. Let the digging begin. But from the outside, the glaring problem with the legal process seems to be that, sometimes, it neglects real people in real pain. And time is not their friend.
Ethicon Surgical mesh complications – what to watch when you watch your health
Hernia mesh is a screen-like medical mesh that supports damaged and weakened tissue caused by a hernia. It is, essentially, a surgical patch applied to damaged abdominal muscles. Ethicon is a division of Johnson & Johnson. J&J’s Physiomesh brand has been known to cause serious complications in patients. These complications may include:
- Severe abdominal pain;
- Infections around the hernia site;
- Recurrence of the hernia and additional surgery;
- Bowel obstruction;
- Migration of the mesh material;
- Organ perforation; and
- Internal bleeding.
Sometimes it takes many years for the problems to surface. People who suffer from surgical mesh complications often have to either live with the pain or undergo revision surgery. The revision may involve replacement or removal of the mesh or further abdominal repairs. Sometimes, the damage cannot be completely undone.
Experts suggest that you seek immediate medical help if you experience:
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- Difficulty urinating or passing gas and stool;
- Excessive pain, bruising, or swelling after surgery;
- Fever higher than 101 degrees;
- Increased redness or drainage from the incision;
- Nausea, vomiting or other flu-like symptoms; or
- Stiffness in the abdomen
The hernia mesh lawsuits may eventually take a dangerous product out of circulation. In the meantime, however, it is apparently still being marketed.
The long term goal is to prevent further harm and compensate people who have been injured. Court watchers can help with this. In the short term, however, patients must monitor their health and seek medical and legal assistance when needed.