We are currently reviewing hernia mesh lawsuits for individuals who are interested in pursuing compensation, justice and accountability in the United States Federal Courts. The Ethicon Physiomesh™ Hernia Mesh lawsuits in the United States are individual lawsuits. These individual lawsuits in the United States are now multi district litigation (MDL) consolidated in the Northern District of Georgia in front of the Honorable Honorable Richard W. Story, “for coordinated or consolidated pretrial proceedings.” ***
In Canada, the Ethicon Physiomesh™ Flexible Composite Mesh litigation constitutes a class action. Many Canadian victims may be unaware of their potential right to utilize the Federal Courts in the United States to pursue justice and accountability as a result of defective hernia mesh.
Can Canadian Ethicon Physiomesh™ hernia mesh victims file a lawsuit in the United States of America (USA)? Certain Canadian citizens, who are victims, may be able to file a lawsuit in the United States.
Hernia mesh attorneys
We are not attorneys in Canada. If you need legal advice concerning the law in Canada related to the Canadian product liability class actions or the Ethicon Physiomesh Class Action, contact a Canada hernia mesh lawyer.
The author of this article is attorney David Slepkow. David Slepkow is an attorney licensed to practice in front of the United States Supreme Court. David is also a personal injury lawyer licensed to practice In Rhode Island and Providence Plantations as well as the Commonwealth of Massachusetts. David was a longtime member of the bar for The U.S. Federal Court, First Circuit, District of Rhode Island.
ETHICON PHYSIOMESH™ Hernia Mesh: Recall in Canada | Market removal in The United States
The laws in the United States and Canada are different as far as product liability and defective hernia mesh litigation is concerned. On May 25th, 2016, Health Canada recalled Ethicon Physiomesh™ Flexible Composite Mesh from the Canadian markets. Recall and Safety Alerts PHYSIOMESH FLEXIBLE COMPOSITE MESH (2016-05-25) “Health Canada is the Federal department responsible for helping Canadians maintain and improve their health, while respecting individual choices and circumstances” About Health Canada “According to our mission and vision, Health Canada’s goal is for Canada to be among the countries with the healthiest people in the world.” Id.
Canada Class Action
According to cbc, “Siskinds, a law firm from London, Ont., is applying to certify a class action lawsuit on behalf of Canadian patients who have had problems with Physiomesh™” cbc According to cbc, “What happens is, we allege, is that it triggers major complications” Id. “It moves, and then people have mesh that’s either pulled apart or moved, and isn’t doing the job it was put in to do.” Id.
- “According to the class action’s statement of claim in Canada, the plaintiffs allege that there is a “design defect” in the Physiomesh™ that causes it to contract, tear, or migrate, leading to such injuries as perforations, abscess and adhesion formations, infections, and the need for further surgery.” CTV
- “These Canadian victims assert that there were not properly warned of the dangers of the device.” Id.
According to CTV news, “The device at the center of the claims is Ethicon’s Physiomesh™ Hernia Mesh which Health Canada recalled in 2016. The Canadian agency’s action came after it learned that recurrence and reoperation rates with the device were higher than those of other meshes.” CTV NEWS, Canaadian news
Supreme Court of Canada: “Fair and efficient resolution”
The Supreme Court of Canada underscored the importance of Class actions in Canada stating: “While the class action has existed in one form or another for hundreds of years, its importance has increased of late. Particularly in complicated cases implicating the interests of many people, the class action may provide the best means of fair and efficient resolution.” Western Canadian Shopping Centres Inc. v. Dutton,  2 SCR 534, 2001 SCC 46 (CanLII), <http://canlii.ca/t/520c>, retrieved on 2017-06-10.
Some provinces in Canada have enacted comprehensive legislation related to class action causes of action “And in Canada, the provinces of British Columbia, Ontario, and Quebec have enacted comprehensive statutory schemes to govern class action practice: see British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50; Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6; Quebec Code of Civil Procedure, R.S.Q., c. C-25, Book IX.” https://www.canlii.org/en/ca/scc/doc/2001/2001scc46/2001scc46.html
If there is no comprehensive legislation,” Absent comprehensive codes of class action procedure, provincial rules based on Rule 10, Schedule, of the English Supreme Court of Judicature Act, 1873 govern. Western Canadian Shopping Centres Inc. v. Dutton,  2 SCR 534, 2001 SCC 46 (CanLII) https://www.canlii.org/en/ca/scc/doc/2001/2001scc46/2001scc46.html
ETHICON Physiomesh™ hernia mesh used in Canada since 2010
Physiomesh™ Flexible Composite Mesh has been surgically implanted into patients in Canada since September 2010. CTV Some Canadian victims in Canada have filed a class action against Ethicon Inc. Ethicon is a subsidiary of Johnson and Johnson.
Victims across Canada
Victims across Canada including victim’s from: Toronto, Montreal, Vancouver, Ottawa, Calgary, Edmonton, Quebec City, Winnipeg, Halifax and Hamilton may find the Hernia Mesh lawsuit information in this blog helpful in making important decisions concerning their claim for compensation. There may be thousands of victims across the following provinces: Canada: Ontario, Quebec, British Columbia, Manitoba, Manitoba, Newfoundland and Labrador. Victims in Canada should consult with hernia mesh attorneys in the United States as well as Canadian Class action lawyers.
The 411 on the Canada Ethicon Physiomesh™ recall
“Starting date: May 25, 2016 | Posting date: June 13, 2016 | Type of communication:Medical Device Recall | Subcategory: Medical Device | Hazard classification: Type II | Source of recall: Health Canada | Issue: Medical Devices |Audience: General Public, Healthcare Professionals, Hospitals | Identification number: RA-58846” http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2016/58846r-eng.php
Ethicon’s Market removal in The United States
In the United States, on May 26th, 2016, Ethicon issued an “urgent” field safety notice concerning ETHICON PHYSIOMESH™ Flexible Composite Mesh (All Product Codes). Ethicon is a subsidiary of Johnson and Johnson. These product codes are: PHY0715R, PHY1015V, PHY1515Q, PHY1520R, PHY1520V, PHY2025V, PHY2030R, PHY2535V, PHY3035R, PHY3050R. In that notice, Ethicon stated: “We have initiated a worldwide medical device removal of ETHICON PHYSIOMESH™ Flexible Composite Mesh (for laparoscopic use) (“ETHICON PHYSIOMESH™ Composite Mesh”).
The lawsuits in the United States are individual lawsuits that are part of Multi District Litigation
The Panel on Multi District Litigation in the United States (US) ordered that “IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the Northern District of Georgia are transferred to the Northern District of Georgia and, with the consent of that court, assigned to the Honorable Richard W. Story for coordinated or consolidated pretrial proceedings. Transfer order
What is Physiomesh™Flexible Composite Mesh by Ethicon?
According to medline.com, “ETHICON PHYSIOMESH™ Flexible Composite Mesh is a sterile, low profile, flexible composite mesh designed for the repair of hernias and other fascial deficiencies. The mesh product is composed of a nonabsorbable, macroporous polypropylene mesh laminated between two polyglecaprone-25 films. An undyed polydioxanone film provides the bond between the polyglecaprone-25 film and polypropylene mesh. The polypropylene component is constructed of knitted filaments of extruded polypropylene. An additional dyed (D&C Violet No. 2) polydioxanone film marker has been added for orientation purposes.”http://www.medline.com/product/PHYSIOMESH-Flexible-Composite-Mesh-by-Ethicon/Z05-PF47325
Canadian citizens may be unaware of their rights to pursue justice in the United States’ Court system
Apparently, the vast majority of aggrieved Canadian Ethicon Physiomesh™ victims are not aware that they have the option of utilizing the United States Judicial system for compensation* “As Americans continue to file hernia mesh lawsuits, Canadians began their hernia mesh class action claiming they weren’t warned of the implant’s risks.” More info
In United States Ethicon Physiomesh™ claims are individual lawsuits , not class actions!
This is a very important distinction. These Ethicon Physiomesh™ in The U.S. are not a “class action” under United States law as defined by the Federal Rules of Civil Procedure, 28 U.S.C.A. § 23
We are reviewing potential cases of defective hernia mesh, made of non-absorbable polypropylene that may have caused injuries, including:
- Ethicon Physiomesh™
- Atrium C-QUR
- Composix® Kugel® mesh patches (manufactured by C.R. Bard subsidiary Davol)
- All C.R. Bard mesh patches made of Marlex polypropylene
Problems with class actions
Class actions can be very problematic since individual claimants do not have control over their own case. Individual claimants may not have control over a settlement. Lawinfo sets forth one of the main problems with class actions: “Lack of decision making control. Class action lawsuits are, by definition, representative rather than group litigation. That means that representatives of the affected class make the important litigation decisions – including when to settle. A plaintiff who is not a representative does not have a say in whether to settle or continue to litigation.” Lawinfo Resource
What is the purpose of a class action
“Class actions are a mechanism designed to provide access to the courts for claims that are too small to be prosecuted economically on their own,” said Robb, a partner in class actions at Siskinds LLP in London, Ont.” https://www.theglobeandmail.com/globe-investor/personal-finance/household-finances/thinking-of-joining-a-class-action-lawsuit-know-your-options/article19777681/
“Class actions lump together all those who might meet the stated criteria for the class. A certified action has two phases. A first phase sorts out the “common issues” for all the class members, and the second looks at the individual circumstances for each class member. So while class actions do eventually look at an individual’s situation, this doesn’t happen until much later in the case. That “common issues” phase can take a long, long time. The controversy is whether it’s fair, post certification, to make all class members wait until that common issues phase wraps up before individual class members can settle their own claims.” http://business.financialpost.com/legal-post/the-opt-out-option-controversy
Do I need to opt out of a Canadian class action?
Please consult with a Canadian class action hernia mesh lawyer whether you have to opt out of the class action. A Canada Ethicon Physiomesh™ hernia mesh attorney can explain your legal rights in Canada regarding whether you need to opt out of the Canadian Hernia mesh class action.
“Ontario is an “opt-out” jurisdiction. That means if a representative plaintiff succeeds in getting an action certified, potential members of the class are given a window of time during which they can declare that they want out. After this “opt-out” period expires, qualified members of the class action are in, whether they like it or not. Cue the Eagles … and welcome to the Hotel California.” Opt out info
“Canadian jurisdictions have adopted opt-out regimes subject to one exception to be discussed. The opt-out regime was adopted because of the widely held view that most class members are passive in the proceedings. Thus, to have an opt-in regime would have the effect of greatly diminishing the size of most classes in many instances because potential members would not take the necessary steps to have themselves included in the class or they might not have obtained actual notice at all. At the same time, opt-out regimes do permit class members who are actively opposed to the proceedings to exclude themselves if they are so inclined; few have done so. Class action
“Since the same witnesses and authorities will be relevant in each case, consolidating them makes sense. It also allows a Defendant to settle knowing that they will then not face individual claims later for the same thing. Once a class action is brought everyone who has a similar claim becomes a member of the class and subject to the findings in the class action lawsuit unless they specifically choose to opt out of the class action so they can bring their own claim.” http://adrworks.com/class-action-lawsuit/
Class actions in Canada
“Most class action claims settle and all settlements must be approved by the court and found to be in the best interests of the members of the class who are claiming. Individual class members may give input to the court when a settlement is proposed. This may include opposing the settlement especially if they would not benefit from it or if they believe the compensation is not adequate. Once a settlement is approved by the court people who are entitled then file claims which are assessed by a claims administrator in accordance with the settlement agreement. Once all claims are assessed it can be determined how much any person will receive as compensation. It may still take a long time from settlement to payment as many of our clients have experienced with the Vioxx case which settled with an agreement in January 2012, with court approval given in September 2012 and claims still being assessed almost to the end of 2015. Payment of those claims is now expected early in 2016.” http://adrworks.com/class-action-lawsuit/
Referring to transvaginal tape litigation, “Matthew Baer, a lawyer with the Siskinds Law firm in Ontario tells MDND they don’t have Multidistrict litigation in Canada, instead a person can file an individual claim or join a class action. In Canada, we file on behalf of one person and get that certified as it applies to everyone else. The individual issues will be sorted out down the road. It can take two years to be certified and we don’t get access to discovery until the case is certified. It is only after the class is certified that a Canadian law firm can move ahead on discovery getting documents from the other side. As the case proceeds individual are brought forward to represent the class like a mini-trial.” http://www.meshmedicaldevicenewsdesk.com/canadian-courts-take-aim-at-ethicon/
What are the complications
According to CLG.org, “The alleged injuries, conditions and complications suffered due to hernia mesh products include, but are not limited to:
– Hernia recurrence
– Chronic pain
– Mesh contraction
– Mesh migration
– Infection and abscess formation
– Pain with sex
– Testicle removal
– Intestinal blockage
– Liver abnormalities
– Bowel obstructions
– Dental problems
– Autoimmune disorders” https://www.clg.org/Class-Action/List-of-Class-Actions/Hernia-Mesh-Injury-Canadian-Class-Action
*** The U.S. Judicial Panel on Multidistrict Litigation (JPML) ordered that all Ethicon Psyiomesh hernia mesh causes of action are transferred to the Northern District of Georgia. “IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the Northern District of Georgia are transferred to the Northern District of Georgia and, with the consent of that court, assigned to the Honorable Richard W. Story for coordinated or consolidated pretrial proceedings.” Transfer order
The Court reasoned that “We are also not persuaded that informal coordination is a practicable solution here. Almost 70 actions are pending in 36 district courts, and dozens of law firms are involved in this litigation. Section 1407 centralization will place all actions before one judge who can structure pretrial proceedings to enhance efficiency and more effectively minimize overlap.” Id. ” Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel, and the judiciary.” Id.
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