Pharmaceutical companies continue to face lawsuits relating to hernia mesh implants. These lawsuits span from the late 2000s to the present day. Some cases are part of multi-district litigation. Other hernia lawsuits stand alone and are not part of multidistrict litigation. Some mesh cases are pending in State Courts while others are being litigated in Federal Courts. There are NO hernia mesh class actions. Many victims mistakenly believe that the hernia mesh lawsuits are a class action. As of this date there has only been one large scale settlement of hernia mesh lawsuits. (The Bard/ Davol Kugel mesh settlement of 184 Million) It is important to note that there could be many more individual mesh lawsuit settlements that were either not widely reported or were subject to nondisclosure agreements. There has only been two reported jury verdicts of hernia mesh lawsuits.
There are a handful of companies that make and sell hernia mesh. These companies include:
- Bard / Davol
- Ethicon (Johnson and Johnson subsidiary)
While these companies have certainly paid attention to the verdicts and settlements involving other companies, they’ve also responded to the litigation on their own timetables. Some continued to fight the litigation into the mid and late 2010s, while other companies work towards resolving the lawsuits through settlement.
Early hernia mesh cases that went to trial
In the Kugel Mesh hernia Patch litigation, the honorable Justice Lisi scheduled 4 bellwether trials. The Kugel Patch litigation was a multidistrict ligigation pending in Federal Court in Rhode Island (RI). The first bellwether trial, Whitfield v. Davol, resulted in a verdict in favor of the mesh manufacturer. In the 2nd bellwether trial, Christopher Thorpe v. Davol and C.R. Bard, there was a 1.5 million dollar jury verdict in favor of the victim, Plaintiff.
The 3rd and 4th bellwether trial never occurred as a result of a global settlement. “In 2011,Bard “reached an agreement to settle Kugel hernia mesh lawsuits brought by about 2,600 people who experienced severe internal injuries caused by problems with their hernia repair patches, with an average payout of about $70,000 for each plaintiff.” https://www.aboutlawsuits.com/kugel-hernia-mesh-settlement-charge-19288/ Bard paid 184 million to settle the product liability lawsuits. Bard Davol had previously recalled many different types of Composix Kugel Mesh patches.
Despite the fact that the Kugel Patch multidistrict litigation has been disbanded, it is not too late to file a Kugel hernia patch lawsuit.
Kugel hernia mesh lawsuits that went to trial and jury verdict
- John Whitfield v. Davol, Inc., et al. “The first bellwether trial involving the Kugel surgical mesh patch ended in a defense verdict on April 14 when a Rhode Island federal jury found that the plaintiff had not proven that his injuries were directly caused by or contributed to by negligent design of the device (In Re: Kugel Mesh Hernia Patch Litigation, MDL Docket No. 1842, No. 07-1842; John Whitfield v. Davol, Inc., et al., No. 07-1918, D. R.I.). A nine-member jury in the U.S. District Court for the District of Rhode Island, where the Kugel mesh hernia patch multidistrict litigation is centralized, found that plaintiff John Whitfield did not prove that the CK (Composix Kugel) patch was defectively designed or inadequately labeled or that defendants C.R. Bard Inc. and subsidiary Davol Inc. were negligent in labeling the device. The jury did find that Whitfield had proved that the defendants’ design of the patch was negligent. Having answered “yes” to one of the first four questions on the verdict form, the jury then found that Whitfield had not proved damages caused by or contributed to by the patch. Whitfield’s claims for actual damages and punitive damages were bifurcated. After the jury returned its verdict on actual damages, Chief Judge Mary M. Lisi ruled that there was insufficient evidence to support a claim for punitive damages.Judge Lisi also denied the defendants’ oral and written motions for judgment as a matter of law. https://www.lexisnexis.com/legalnewsroom/litigation/b/litigation-blog/archive/2010/04/15/1st-bellwether-trial-in-kugel-patch-mdl-ends-in-defense-verdict.aspx?Redirected=true
- Christopher Thorpe v. Davol and C.R. Bard – 2010 – This was the 2nd bellwether trial in the Kugel hernia mesh lawsuit litigation in Rhode Island Federal Court. In this hernia mesh lawsuit, the Rhode Island and Providence Plantations jury awarded the plaintiffs $1.5 million. The 1.5 million award was comprised of 1.3 million for Mr. Thorpe and $200,000 for his wife. Christopher Thorpe pursued the hernia mesh lawsuit against Bard as a result of allegedly defective Kugel Hernia patch The verdict included damages for loss of companionship for the victim’s family. Thorpe also sought Punitive damages against Bard but the trial justice denied Thorpe’s request for punitive damages. The court denied predictable post-trial motions on the part of the defendant to try to have the verdict vacated or dismissed. This mesh verdict was the 2nd of a series of scheduled “bellwether” jury trials.
“The Kugel hernia patch lawsuit was brought by Christopher and Laura Thorpe, of North Carolina, who alleged that a defective Composix Kugel patch implanted in Christopher Thorpe broke and caused him to suffer internal injuries and a sepsis infection. Following nearly a month-long trial, a jury in the U.S. District Court for the District of Rhode Island ruled that the medical device manufacturers failed to warn Thorpe about the risks of Kugel hernia patch problems and determined that the manufacturers had designed a defective device. The jury awarded $1.3 million in compensatory damages to Christopher Thorpe and $200,000 to his wife.” About lawsuits https://www.aboutlawsuits.com/kugel-hernia-patch-lawsuit-verdict-12342
Have there been any hernia mesh cases settled in large numbers?
As of this date, there has been no large scale or global settlement of Physiomesh, Parietex mesh or Atrium C-qur hernia mesh cases. There has been no large scale settlements of Ethicon Proceed or Prolene hernia mesh lawsuits.
A couple of early Kugel hernia mesh lawsuits went to jury trials (set forth above) against C.R. Bard. The pharmaceutical company, C.R. Bard, defended the lawsuits using the argument that the hernia mesh they manufactured was not defective and the mesh did not cause the complications. They essentially claimed that they weren’t to blame for the victim’s injuries, symptoms and complications.
Mesh companies denigrate mesh victims
Ethicon’s hernia mesh defense law firm, to this date, refuses to settle the Physiomesh hernia mesh lawsuits. The failure to offer generous settlements is dubious, at best, considering Ethicon’s removal of the medical devices from the market is seemingly an admission that Physiomesh is defective. Please note that Ethicon did not recall Physiomesh, technically. However, Ethicon’s voluntary removal was a defacto recall. Ethicon is so sensitive to these semantics they routinely send cease and desist letters to any hernia mesh attorneys who have have the temerity to suggest their actions constitute a recall.
Rather then fairly compensating the victims, Johnson and Johnson’s law firm, Butler Snow, is engaging in what some believe are scorched earth, rambo type litigation tactics. In a submission to the Federal Court, Johnson and Johnson and Ethicon’s attorneys argued that the victims conditions and complications may not have been caused by defective PHYSIOMESH hernia mesh.
These hernia mesh defense attorneys argued that the victim’s conditions and injuries may be a result of:
- poor surgical technique
- The victim’s obesity
- The victim’s age
- The mesh victim’s medical history
- Associated injuries
- The victim’s history of smoking
- The mesh victims “genetics, size of hernia, infections, and chronic cough” Ethicon’s memo of law http://www.kugelherniameshclassaction.com/shameless-ethicon-claims-victims-complications-caused-age-obesity-medical-history-etc/
There have certainly been many more settlements and jury verdicts related to transvaginal mesh then hernia mesh. Some of the transvaginal jury trials involved different types of mesh. Juries soundly rejected the arguments of the mesh companies and awarded generous damages to the victims. In other transvaginal jury trials, the mesh manufacturer’s prevailed at a jury trial on the merits. As companies have come to realize, juries often reject their arguments and side with the victims. Transvaginal mesh juries often favor victims. This realization sometimes brings the mesh manufacturer the impetus to resolve hernia mesh cases through settlement.
Determining a settlement figure
Whether a case settles in a single lawsuit or whether it’s a part of a class action case, one of the important questions in mesh litigation is how to determine the value of a victim’s case. It’s a complicated question that depends on the details of each victim’s case. The victim’s medical complications, their pain and suffering and their financial losses all play a role in determining the value of a hernia mesh case.
To determine the value of a settlement, a victim’s physical complications play a significant role. If a victim needs major surgery and lifelong care because of receiving a mesh product, their claim is worth more than someone who needs only a minor procedure. If a victim has lifelong disabilities and pain, the case is worth more than someone who has minor discomfort for a week. A victim’s financial losses also play a part. Your personal injury attorney can help you evaluate all of the possible damages that might be an option in your case.
The strength of the case
Adding to the value of each victim’s hernia mesh case is the history of litigation of the transvaginal cases in the United States. Mesh litigation has been overwhelmingly positive for victims. That history increases the value of each case. Because victims know that they’re likely to succeed in bringing a claim, pharmaceutical companies are more likely agree to resolve the claims for higher amounts than they may have entertained years ago.
Transvaginal Juries overwhelmingly agree that pharmaceutical companies acted negligently when they poorly designed their mesh products, failed to test them sufficiently and failed to properly train doctors for appropriate use. However, it’s still up to each plaintiff to prove that they’re injured because of a mesh. They must show that they have damages. They must show that their damages are the result of receiving a mesh. Even though liability appears to be clear, each plaintiff must still carefully prove that they’re a valid claimant with damages.
The basis for the hernia mesh lawsuits
The verdicts have motivated the pharmaceutical companies to settle lawsuits. While the value of a case depends on its exact circumstances, the value of a case includes the victim’s financial losses because of their injuries. A victim can also recover for pain and suffering, loss of use and emotional devastation.
What is a hernia?
“A hernia, in its simplest terms, is a hole in the abdominal wall or fascia that allows abdominal contents to protrude outside
the abdominal cavity. The most common type of hernias are located in the groin; these defects are known as inguinal hernias. The second most common hernias are located on the abdomen; they are referred to as ventral or incisional hernias. ” https://www.gpo.gov/fdsys/pkg/USCOURTS-rid-1_07-md-01842/pdf/USCOURTS-rid-1_07-md-01842-9.pdf