In light of frequent issues of fact and law raised in complaints filed in US district courts nationwide, the US Judicial Panel on Multidistrict Litigation decided to centralize the Covidien hernia mesh litigation in June 2022 and referred all cases to US District Judge Patti B. Saris to be transferred to the District Judge in Massachusetts for a coordinated discovery and a series of early hearings.
Following recent filings ahead of a status conference held Oct. 25, the parties report that 170 lawsuits are currently pending in the state’s Covidien MDL. However, there are also another 5,700 lawsuits filed in Massachusetts state court, where the manufacturers are headquartered.
Competing Discovery Plans for Covidien Hernia Mesh Claims
As part of the coordinated conduct of the litigation, Judge Saris established a “Leitwether” process in which a group of representative cases are prepared for early hearing dates to help parties assess the relative strengths and weaknesses of their claims and how juries are likely to assess certain ones Evidence and testimonies respond, which are repeated throughout the litigation.
On October 14, plaintiffs and defendants submitted competing proposals on the timeline for preparing these lead cases to the MDL. The parties indicated that they have reached agreement on most items relating to a proposed planning order, the handling of Electronically Stored Information (ESI) and a proposed confidentiality and protection order. However, the parties disagree on the deadline for completing general corporate discovery for the initial lead cases and coordinating with litigation in Massachusetts State Court.
In a proposal (PDF) filed on October 14, Plaintiffs requested that evidence collection be completed by April 8, 2024, and Defendants’ proposal (PDF) to be completed in less than a year; until 09/30/2023.
The plaintiffs allege that the proposal is inadequate and that they compromised on a number of factors in the proposals, but the defendants have been more adamant.
“The defendants did not share the plaintiffs’ willingness to compromise, but in exchange for accepting Plantiffs’ reasonable date, proposed a draconian coordination process with the state court process that would disadvantage all plaintiffs in this MDL,” plaintiffs’ lawsuit reads. “Of course, the only question the Scheduling Order CMO Court must answer is whether plaintiffs have less than a year to bring a large MDL case to trial, or whether it is the more appropriate timeframe of 18 months, proposed by the plaintiffs. This court should give the plaintiffs 18 months to conduct investigations.”
Defendants allege that coordinating cases at the federal and state levels would prevent duplication of effort, promote efficiency, and avoid the need for multiple interviews with witnesses. The manufacturer cautions that September 30, 2023 is the date previously chosen by a state court judge for the completion of the general corporate determination in the Massachusetts Coordinated Proceeding.
While the results of these trials are not binding on other plaintiffs in the lawsuit, they may help persuade the parties to hernia mesh settlements that would avoid the need for hundreds of individual trials.
At least three other hernia mesh MDLs were previously established for claims related to other polyethylene products sold by various companies, centralizing more than 15,400 Bard hernia mesh claims in the Southern District of Ohio, an additional 3,600 Ethicon Physiomesh Suits centralized in the Northern District of Georgia and 3,251 Atrium C-Qur suits in the District of New Hampshire. Many of these claims were settled before the first claims even came before a jury.