Mixed Results Continue in Transvaginal Mesh Cases

It’s been a mixed couple of weeks for transvaginal mesh lawsuits. While seven different manufacturers continue to face multidistrict litigations in West Virginia, there’s been both good and bad news for the tens of thousands of women allegedly injured by defective mesh implants. In Texas, Ethicon – a subsidiary of Johnson & Johnson – convinced a federal judge to dismiss claims brought by more than 70 out-of-state plaintiffs by arguing that they had no cause to join a Texas woman’s lawsuit. Meanwhile, in the Southern District of Florida, Boston Scientific Corp. was hit with a $27 million verdict in a bellwether trial over its Pinnacle Pelvic Floor Repair Kit, with four plaintiffs each receiving more than $6.5 million. What are we to make of such different rulings – and is there any way to know how the remaining lawsuits will go?

Where are transvaginal mesh lawsuits being heard?

The seven multidistrict litigations (MDLs) overseen by Judge Joseph R. Goodwin concern mesh products produced by the following companies:

• C. R. Bard, Inc. (9,884 lawsuits)
• American Medical Systems, Inc. (18,903 lawsuits)
• Boston Scientific Corp. (14,272 lawsuits)
• Ethicon, Inc. (21,774 lawsuits)
• Coloplast Corp. (1,721 lawsuits)
• Cook Medical, Inc. (259 lawsuits)
• Neomedic (72 lawsuits)

These are all being heard in West Virginia, although bellwether trials – a series of early jury trials using plaintiffs considered to be representative of the larger group – may be heard in other courts, with Judge Goodman’s discretion. This is the case of the most recent Boston Scientific trial, which was heard in Florida (the home state of the plaintiffs) while still under the auspices of the West Virginia-based MDL.

The MDLs do not include all transvaginal mesh lawsuits, though. State courts are also ruling on mesh cases. There are a number of reasons why some mesh lawsuits are in state courts and not part of an MDL – mostly due to plaintiffs’ preferences. When a lawsuit is filed, plaintiffs and their lawyers can choose to file in state or federal court. With mesh lawsuits, some lawyers have elected to use state courts to seek compensation for their clients. Because there are multiple companies facing lawsuits, some in both state and federal courts, every ruling is important, but cannot be used to predict how all the other lawsuits will be resolved.

How did Ethicon convince a judge to toss 76 claims from Texas?

Last week, U.S. District Judge Kenneth M. Hoyt granted Ethicon’s motion to dismiss claims from 76 plaintiffs who lived out-of-state. In his ruling, the judge agreed with the company that the women had failed to show a good reason for joining the Texas-based suit, writing:

“[Plaintiffs do not] possess the kind of repeated online contacts with Texas residents to establish jurisdiction there.”

In a sign that the ruling was about jurisdiction rather than merit, Judge Hoyt dismissed the claims without prejudice and allowed the Texas plaintiff to continue. Judy Locke’s lawsuit will now move forward, while the 76 other plaintiffs– said to be from more than a dozen different states – may be able to re-file their claims with more appropriate courts.

So Ethicon’s victory isn’t actually over its mesh?

It’s not. The claims dismissed due to lack of jurisdiction could well succeed in the future. Because the judge dismissed the claims without prejudice, the plaintiffs may still file their own lawsuits in other courts.

Speaking of success, what does the Boston Scientific bellwether verdict mean for other mesh cases?

It’s hard to say – partly because bellwether trials so far have been somewhat mixed. Although bellwether cases are designed in part to give a representative “taste” of how the litigation will go, no single pattern has emerged yet, with some leading to verdicts against the mesh manufacturers, some being dismissed, and some settling for undisclosed sums. Boston Scientific has had relative success in defending itself, and was cleared of all liability in two mesh bellwether trials in Massachusetts in July and August of this year. The latest verdict turns things on their head, with the jury ruling that the company’s Pinnacle mesh was defective and carried insufficient safety warnings at the time of sale. Four plaintiffs were each awarded more than $6.5 million in compensatory damages. This judgment follows a previous ruling against Boston Scientific in September, when a Texas jury ruled that the company’s Obtryx Transobturator Mid-Urethral Sling was dangerous and that the company had acted with gross negligence. The jury’s judgment of $50 million punitive damages was eventually cut to $34.6 million by a judge, in accordance with a state damages cap law.

What happens now?

The MDLs continue, the bellwether trials continue, and state court cases continue. All seven mesh manufacturers have shown that they’re willing to fight the lawsuits, and in such complicated, nation-wide litigation, that means one thing: it’s going to take a long time for all the mesh cases to be resolved. Although MDLs by nature are designed to save resources and streamline the litigation process, there are a huge number of plaintiffs – over 20,000 for Ethicon alone – and the nature of the injuries and alleged mesh defects makes it hard to generalize anything. If you’ve been affected by mesh injuries, take heart from knowing that even when a manufacturer manages to get cases dismissed or wins a bellwether trial, that’s not a ruling on all mesh cases in all states.

UPDATE: News came this morning of a second Boston Scientific bellwether trial ending in a $18.5 million verdict against the company. The trial in West Virginia took ten days, after which the jury ruled that the four plaintiffs had been implanted with defective devices without proper safety warnings. The device in question was the Obtryx Transobturator Mid-Urethral Sling System. More than $14 million in compensatory damages has been awarded, to be divided between the plaintiffs, with an extra $4 million awarded in punitive damages.

A second loss so soon after the first is bad news for Boston Scientific – but could it be enough to convince the company to settle? What’s more, will the thousands of remaining plaintiffs be willing to settle for anything less than the large compensatory judgments seen so far in the bellwether trials? It’s difficult to tell – but this is certainly good news for women seeking compensation for mesh-related injuries.