Major activity is underway in the seven transvaginal mesh multidistrict litigations in the Southern District of West Virginia. While American Medical Systems (AMS) continues to settle claims involving its mesh products, C.R. Bard, Boston Scientific, Johnson & Johnson, and Cook Medical are gearing up for more bellwether trials this year. Here are some of the highlights:
Early last year, Judge Goodwin selected 200 cases (Wave 1 and 2) for case specific discovery to include depositions of the Plaintiffs as well as treating physicians. In an effort to spur continued progression in these cases given the large number of pending claims, the Court later designated approximately 300 more cases (Wave 3) for discovery on cases involving only the Bard Avaulta mesh product used for pelvic organ prolapse repair.
Believing that it would be impossible to actually depose every treating physician responsible for the care and treatment of 300 Plaintiffs, the Court determined that depositions by written question would be the most efficient means of handling the deposition process; however, the process quickly became cumbersome and problematic for all the parties.
To address these concerns, the Court designated a Miniwave process, which reduced the number of Plaintiffs in the wave to 60. Once discovery is completed on these cases, they will be deemed trial ready, and will be either transferred to a federal district court of proper venue, or in the alternative, remanded to the federal district court from which the case was transferred to the MDL, if applicable.
Despite this movement, Bard continues to seek to delay trials and has even argued that trials should be delayed because comments by U.S. District Judge Joseph R. Goodwin served to prejudge Bard’s liability in these cases. Judge Goodwin rejected its argument and ruled that Bard had not demonstrated good cause to further delay trials. The next trial against Bard is scheduled to begin Feb. 18.
Early 2014 resulted in the selection of approximately 200 cases (Wave 1 and 2) for case specific discovery. This litigation is currently in the Daubert motion phase and these cases will be deemed trial ready early this year. In September 2014, Boston Scientific lost its first trial in Texas state court when a jury awarded a $73.4 million verdict to a Plaintiff implanted with the company’s Obtryx midurethral sling. The jury found that there was a safer alternative design available than the Obtryx device and that it was unreasonably dangerous as marketed. The jury also found that Boston Scientific has acted with gross negligence. Trials against Boston Scientific are currently scheduled for February (Dallas, Texas), May (Delaware), and June 2015 (Texas and Massachusetts).
Johnson & Johnson
Cases against Johnson & Johnson and Ethicon have not been designated for case specific discovery through a wave process like in Bard and Boston Scientific. Instead, the Court chose six bellwether cases for trial designation, the last two of which are scheduled to be tried in March 2015 in West Virginia. These cases involve the Ethicon Prolift product for pelvic prolapse repair. The Prolift vaginal mesh system was associated with many negative side effects, prompting the company to voluntarily recall the product from the market.
Last September, a jury in West Virginia federal court awarded a $3.27 million verdict finding that Ethicon’s transvaginal sling was defectively designed. Prior to that, a jury in Texas state court found for the plaintiff and awarded a $1.2 million verdict. In addition to the federal trial in March, more trials are expected against Johnson & Johnson and Ethicon in state courts this year, with one scheduled for February 2015 in Austin, Texas and another scheduled for April in Dallas, Texas.
Recently, the MDL court ordered four cases against Cook Medical to be tried as bellwether cases, with the first case to be ready to try on April 20, 2015. If that case is dismissed or otherwise not ready for trial, a back-up case will be tried in its place. The next trial is set for May 18, 2015, and if that case is dismissed or otherwise not ready for trial, another back-up case will take its place. The final trial date will be June 8, 2015.
If you need more information on any part of the above contact either Danielle Mason, Leigh O’Dell or Chad Cook, lawyers in our firm’s Mass Torts Section, at 800-898-2034 or email Danielle.Mason@beasleyallen.com, Leigh.Odell@beasleyallen.com or Chad.Cook@beasleyallen.com.
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