In a New Hampshire federal court, over 100 patients have sued Atrium Medical, a small medical device manufacturer responsible for the C-Qur line of hernia mesh patches. Around 100 other lawsuits, naming Johnson & Johnson-subsidary Ethicon as lead defendant, are consolidated in the US District Court for the Northern District of Georgia. These lawsuits all involve the product known as Physiomesh. Most claims relate specifically to the Physiomesh Flexible Composite Mesh, which was withdrawn from the global market in 2016 after two unpublished studies found that Physiomesh patients had higher rates of hernia recurrence and re-operation than other people.
Have Any Settlements Been Announced?
To date, no legal settlements have yet been announced in these two hernia mesh litigations. But many hernia mesh manufacturers are already well-acquainted with settlement. Ethicon, for example, has entered three major rounds of undisclosed settlements in relation to the company’s line of transvaginal mesh products.
Those settlements, however, came after a lengthy process of litigation, including several high-profile trials that saw injured patients secure millions of dollars in compensation. It all began when the transvaginal mesh cases were “consolidated” in a single federal court.
How MDL Can Impact Settlement Negotiations
When we use the word “consolidation,” we’re talking about a process whereby the federal court system transfers a number of similar lawsuits, usually filed in separate courts, to a single federal court. The US Judicial Panel on Multi-District Litigation ultimately makes this decision, but usually a request for consolidation (or “coordination”) is initially made by the plaintiffs.
When their request is granted, and an appropriate court has been selected, all of the disparate lawsuits are transferred to the central court for pre-trial proceedings: all the things that need to happen in a legal case before a trial can be held.
Discovery & Motions Practice
Consolidating cases for pre-trial proceedings makes things more efficient. Since all of the hernia mesh lawsuits make similar factual allegations, plaintiffs can band together and demand evidence and answers from Atrium Medical and Ethicon. Likewise, Ethicon and Atrium can obtain necessary personal information from the plaintiffs, all in one fell swoop. So the evidence-gathering stage (or “discovery”) is sped up considerably.
Motions practice gets a lot quicker, too. This is the period of any lawsuit where both sides ask the court to make judgments on legal issues. Particularly common is the motion to dismiss, when the defendant asks the judge to throw out all of the cases (or a substantial portion of the cases) for any number of reasons. Without consolidation, the defendant would have to file a motion to dismiss each case individually. But after the cases are consolidated, defendants can simply file a single motion to dismiss that pertains to each lawsuit equally.
Again, we’ve cut down on time and resources. The whole process of litigation gets cheaper and quicker, for both sides of the dispute, as a result.
So what happens once all of these pre-trial proceedings are done? In many cases, settlement negotiations have been taking place in the background, with a team of plaintiffs’ attorneys meeting with defense lawyers to probe strategies that could resolve the litigation.
Multi-District Litigation is designed to encourage settlements, largely because jury trials are more expensive and stressful. Some MDL judges actually schedule mandatory settlement conferences, although that isn’t strictly required by law.
In any event, once all of the evidence has been gathered, the cases are ready for trial. At this point, the MDL judge has a choice. One option is to send each case back to the federal court in which it was originally filed, where a trial can take place. That’s not usually how MDL proceedings go.
Instead, most MDL judges choose to select a few lawsuits for “test” trials. In a strict sense, these initial trials aren’t tests at all. They’re very real trials, held in front of real juries, with real judgments at the end. But from a more global perspective, the results of these “bellwether” trials can add more precision to those ongoing settlement negotiations.
Once the evidence and arguments have been aired in front of a few real juries, both sides in the dispute will have a far better understanding of where they stand. So a defendant who loses a series of bellwether trials also loses leverage in settlement conferences. Maybe settling all of the cases right now starts to look like the right choice, rather than fight it out in court over and over.
The plaintiffs, on the other hand, gain leverage and can demand more compensation, because they now know that the defendant has to consider a huge number of jury losses as a distinct possibility.
Predicting Settlement Amounts
All of this logic is reversed when defendants win their bellwether trials; plaintiffs lose leverage and defendants gain it. Bellwether trials also help both sides begin to evaluate how much each case will be worth at trial. Let’s say a case in which one hernia mesh patient experienced a hernia recurrence and needed a second operation results in a $6 million judgment. That’s one data point suggesting that cases with similar facts could be valued at around $6 million. Now, both sides of the dispute can start talking in more detail about what amount the cases should be settled for.
While cases with state-specific legal issues are occasionally transferred back to their original court, most lawsuits consolidated in an MDL end in settlement before that possibility ever arises. That’s assuming, of course, that the lawsuits are successful enough to reach the bellwether trial phase and don’t get dismissed at some point.
Where Are We Now?
It’s important to remember that neither hernia mesh litigation has reached the stage of bellwether trials. The Physiomesh MDL, centralized in a Georgia federal court, was only consolidated in June of 2017. The Atrium C-Qur MDL, consolidated in December of 2016, is a little further along, but not by much. It’s still very early in the legal process, which leaves time for new patients and families to file lawsuits of their own. If you or a loved one experienced complications after receiving a hernia mesh patch, contact our experienced product liability attorneys today for a free consultation. Just call or fill out our contact form now to get started.
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