The first three trials over alleged defects in several women’s health products ended with decidedly mixed results. With the parties no closer to settlement, the federal judge overseeing the transvaginal mesh device litigation is weighing an entirely new trial plan in hopes of resolving the nation’s largest mass tort.
U.S. District Judge Robert Goodwin has suggested consolidating the cases for trial — although the details of just how that would happen remain unclear. The next status conference is set for Dec. 5.
“He’s trying to get his arms around probably one of the most complex MDLs that’s ever existed,” said Joseph Rice, founding partner of Motley Rice, whose colleague, Fred Thompson, is coordinating co-lead counsel for the plaintiffs. He referred to multidistrict litigation, in which cases are consolidated to more efficiently resolve common pretrial disputes.
The devices, implanted into women for treatment of pelvic organ prolapse or urinary incontinence, allegedly caused bleeding and pain and, in some cases, required subsequent surgeries. They have attracted more than 35,000 lawsuits, one of the largest dockets on record, in six separate multidistrict proceedings. Monthly status conferences in Charleston, W.Va., host between 50 and 125 attorneys at a time.
Goodwin’s original plan called for individual trials of bellwether cases — those most representative of the litigation overall — against the four manufacturers with the oldest and largest number of cases. The first trials, against C.R. Bard Inc., came this year. A jury awarded $2 million to a woman on Aug. 15, including punitive damages, and Bard settled the second case. The plaintiffs in the third trial abruptly withdrew their case. The final trial is set to begin on Dec. 3.
Bellwether trials against the other defendants — American Medical Systems Inc., Ethicon Inc. and Boston Scientific Corp. — are scheduled next year.
During a Sept. 19 hearing, Goodwin, frustrated with the process, asked attorneys to suggest a way to consolidate the cases for trial. “After going through the initial set of bellwethers … the court has given an indication that he is going to turn up the heat — for lack of a better term — on all sides by consolidating these matters,” said Harry Bell of The Bell Law Firm in Charleston. Bell is co-liaison counsel for the plaintiffs.
The move came as a broad settlement appeared distant. Although American Medical Systems, one of the defendants, agreed on June 14 to pay $54.5 million to settle some cases, the deal didn’t resolve the majority of the more than 10,000 pending against the Endo Health Solutions Inc. subsidiary.
Meanwhile, new cases are joining the pile. Any trial plan would need to address what some plaintiffs attorneys estimate could amount to as many as 60,000 cases involving 80 products. “What the judge is trying to do now is establish bellwether trials on the question of the nature of the product and the defective nature of the product,” Rice said.
EACH WOMAN’S STORY
Plaintiffs attorneys support consolidating trials, but want to ensure that each woman gets to tell her story to a jury. On Oct. 25, lead plaintiffs attorneys suggested that Goodwin consolidate 20 cases from a select group of 200 against each defendant. During the first stage, the plaintiffs would put on evidence solely about liability. A second phase would go into damages.
The defendants oppose consolidation. They insist that much of the litigation consists of “shotgun complaints” in which plaintiffs assert no injuries and fail to identify specific products. Such cases, they argue, could be eliminated through pretrial motions.Matthew Johnson, a spokesman for Ethicon, a Johnson & Johnson subsidiary that faces more than 10,000 lawsuits, said the company has “filed several hundred motions” — and anticipates filing thousands more in the coming months — to fight “unverified and possibly unfounded” complaints.
“We have advised the court of our intention to request dismissal of merit­less claims, including claims with no ­compensable injury, claims barred by the statute of limitations, misfiled claims, and improperly filed claims,” Johnson wrote in an email to The National Law Journal.Bard attorney Lori Cohen, a shareholder at Greenberg Traurig, wrote in an Oct. 30 filing that consolidation would create “insurmountable legal and logical barriers, while failing to materially advance the litigation.”Goodwin is expected to have a plan by year’s end. “He is determined to make sure the litigation moves along,” Bell said.
Amanda Bronstad can be contacted at firstname.lastname@example.org.