This legal article by a hernia mesh attorney answers many important question about hernia mesh multidistrict litigation. Many people are researching hernia mesh class actions. Others fear that their case will become part of a hernia mesh class action. However, most victims do not realize that there has never been a hernia mesh class action in the United States.
Many people get confused between multidistrict litigation and class action lawsuits. This article clarifies what exactly is Multidistrict Litigation. There are currently two multidistrict litigations pending in United States Federal Court: 1) The Atrium C-Qur MDL in New Hampshire and 2) the Physiomesh hernia mesh MDL in the Northern District of Georgia. There is also a proposed MDL for all Bard / Davol cases pending in Federal Courts. (Please note that many Bard Davol hernia mesh cases are being consolidated in RI State Courts. This State Court proceeding is not an MDL because an MDL is a Federal Court statutorily created vehicle)
c-qur-lawsuits

What is multidistrict litigation?

28 U.S.C. § 1407defines Multidistrict litigation: “When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated: Provided, however, That the panel may separate any claim, cross-claim, counter-claim, or third-party claim and remand any of such claims before the remainder of the action is remanded.”28 U.S.C. § 1407, http://www.jpml.uscourts.gov/sites/jpml/files/28_usc_1407.pdf , 28 U.S.C. § 2112

Complete list of all active, closed and proposed hernia mesh Multidistrict litigation:

 

What is the Judicial Panel on Multidistrict litigation?

The United States Judicial Panel on Multidistrict Litigation, widely known in legal circles as the “MDL Panel” was established by a congressional act in 1968. The statute that created the panel is 28 U.S.C. §1407. “The job of the Panel is to (1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and (2) select the judge or judges and court assigned to conduct such proceedings.” http://www.jpml.uscourts.gov/overview-panel-0

The central purpose of the transfer of the lawsuits is the concept of centralization. The rationale for centralization is:

  • steer clear of duplicative discovery
  • end variable and inconsistent pretrial decisions, orders and rulings
  • conservation of judicial resources
  • Conservation of litigant resources

The case is sent to the new court for pretrial proceedings such as motions, settlement negotiations and discovery. If the hernia mesh lawsuit cannot be settled or is not dismissed then the case is sent back to the original federal Court for a trial.”Transferred actions not terminated in the transferee district are remanded to their originating transferor districts by the Panel at or before the conclusion of centralized pretrial proceedings.” http://www.jpml.uscourts.gov/overview-panel-0

A small amount of mesh lawsuits are not transferred back to the original Court for trial because those lawsuits are designated as bellwether trials. Please review this surgical mesh lawsuit article for a detailed description of bellwether trials.

Where is the location of the Panel and how to contact

They are located at Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE Room G-255, North Lobby Washington, DC 20544-0005. Clerk’s Office:  202-502-2800 Jeffery N. Lüthi Clerk of the Panel (202) 502-2888 (Fax)

Here is the current judicial roster:

The JPML features seven distinguished Federal Court Judges. These distinguished jurists are selected to be on the Panel by the Chief Justice of the United States. The laws indicates that two federal court judges from the same circuit may not be on the panel together.

  •  Judge Sarah S. Vance  (chair), the Eastern District of Louisiana.
  •  Marjorie O. Rendell (C.A. Third Circuit),
  • Charles R. Breyer (N.D. California),
  • Lewis A. Kaplan (S.D. New York),
  • Ellen Segal Huvelle (D. District of Columbia),
  • R. David Proctor (N.D. Alabama),
  • Catherine D. Perry (E.D. Missouri).

What does the JPML do?

The Judicial panel on Multidistrict Litigation (JPML), determines if hernia mesh lawsuits and other lawsuits should be consolidated into an MDL. The high powered panel also decides where the concerned cases should be transferred, appropriately. Furthermore, it enhances active processing of cases involving a large number of lawsuits in distinct federal courts amounting to dozens, hundreds or perhaps thousands of cases.The transferor is a court that sends claims subject to multidistrict litigation to another court, the transferee, for discovery and pre-trial proceedings. The cases must be sent back to the transferor court for a trial on the merits. All litigants in an MDL have the right to their own attorney.

What are the rules and orders for the JPML?

Types of cases typically consolidated into multidistrict litigation:

  • Airplane collisions
  • train crashes
  • mass torts
  • motel and hotel fires
  • asbestos claims
  • drug litigation
  • security breaches involving data
  • hernia mesh lawsuits
  • securities fraud

What is a Bellweather trial and why is it important?

“Bellwether trials may provide useful information to the parties regarding the likely outcome of other cases at trial, such as: (a) how well or poorly the parties’ fact and expert witnesses perform in a trial setting; and (b) decisions on key legal issues and the admissibility of key evidence. As recognized by the Manual for Complex Litigation, the purpose of bellwether trials is to “produce a sufficient number of representative verdicts” to “enable the parties and the court to determine the nature and strength of the claims, whether they can be fairly developed and litigated on a group basis, and what range of values the cases may have if resolution is attempted on a group basis.”1 As such, the bellwether process will be valuable only if the cases selected for trial are truly representative of the whole (or of one or more distinct categories of cases that comprise the whole).”   Duke Judicial Studies

“Bellwether” or test cases focused upon individual claims can be an important casemanagement tool in an MDL proceeding involving numerous individual claims. As one judge noted, a bellwether is the first sheep ─ and that is the role we should keep in mind in thinking through bellwether cases. How well or poorly would these facts work before a jury? How good are the experts? Is the key evidence admissible? These types of questions will drive the outcomes in motion practice and trial ─ and in the shadow of those expectations, the settlement values reached if settlement is to occur. It is important for the parties and court to know how the cases will fare. Id 

“But that also means obtaining a sufficient number of outcomes to provide guidance, given the variety of fact patterns, claims, and defenses anticipated. In asbestos, the first ten verdicts were for the defense; but that was not indicative of the overall trend of the litigation. The case management plan should provide for a sufficient number of cases that early outliers (in either direction) can be identified as such, and the true path of litigation discerned to the maximum extent possible.”   https://judicialstudies.duke.edu/sites/default/files/centers/judicialstudies/panel_5-bellwether_trials.pdf“1 MCL § 22.315 (2004); see also In re Hydroxycut Mktg. & Sales Practices Litig., No. 09-md-2087 BTM(KSC), 2012 U.S. Dist. LEXIS 118980, at *56 (S.D. Cal. Aug. 21, 2012) (“The bellwether cases should be representative cases that will best produce information regarding value ascertainment for settlement purposes or to answer causation or liability issues common to the universe of plaintiffs.”) Only when a “representative . . . range of cases” is selected may “individual trials . . . produce reliable information about other mass tort cases.” MCL § 22.315; In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2100, 2010 U.S. Dist. LEXIS 108107, at *4, *6-7 (S.D. Ill. Oct. 8, 2010) (it is “critical to a successful bellwether plan that an honest representative sampling of cases be achieved” because “[l]ittle credibility will be attached to this process, and it will be a waste of everyone’s time and resources, if cases are selected which do not accurately reflect the run-of-the-mill case”); Eldon E. Fallon, et al., Bellwether Trials In Multidistrict Litigation, 82 Tul. L. Rev. 2323, 2343 (2008). (“the trial selection process should . . . illustrate the likelihood of success and measure of damages of all cases in the litigation and [a]ny trial-selection process that strays from this path will likely resolve only a few independent cases and have a limited global impact”). Id.

The Kugel Patch bellwether trials

In the Kugel Mesh Hernia Repair Patch Multidistrict litigation (now closed), the  Federal Court set up a series of bellwether trials. Here are the results of the two hernia mesh bellwether trials which actually occurred: 

1st Bellwether Trial:  The first Kugel Patch MDL trial Ended with a defense verdict. Hernia mesh attorneys representing the victim lost the first hernia mesh belllwether trial. “PROVIDENCE, R.I. — (Mealey’s) 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 was 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. Lexis Nexis  

2nd Bellweather trial:  Hernia mesh attorneys win 1.5 million verdict! “PROVIDENCE, R.I. – (Mealey’s) The second Kugel surgical patch bellwether trial went to the plaintiff Aug. 23 when a Rhode Island federal court jury awarded $1.5 million to a man who claims that the device caused him internal injuries (In Re:  Kugel Mesh Hernia Patch Litigation, MDL Docket No. 1842, No. 07-1842, Christopher Thorpe v. C.R. Bard, Inc., et al., No. 08-463, D. R.I.).” Plaintiff Awarded $1.5 Million In Second Bellwether Trial In Kugel Hernia Patch MDLA jury in the U.S. District Court for the District of Rhode Island, where the Kugel multidistrict litigation is centralized, found that manufacturing defendants Davol Inc. and C.R. Bard Inc. inadequately designed the Kugel patch and failed to warn plaintiff Christopher Thorpe or his doctor that the device could fail.  The jury awarded Thorpe $1.3 million and his wife, Laure Thorpe, $200,000 for loss of consortium. “” https://www.aboutlawsuits.com/settlements-kugel-hernia-mesh-problems-19474/  https://www.lexisnexis.com/legalnewsroom/litigation/b/litigation-blog/archive/2010/08/23/plaintiff-awarded-1-5-million-in-second-bellwether-trial-in-kugel-hernia-patch-mdl.aspx?Redirected=true

History of MDL

The first large-scale complex case to engulf the federal judiciary was an antitrust case. There was an enormous antitrust scandal in the early 1960s in the United States electrical equipment industry. Litigants and lawyers filed 1912 separate lawsuits. As a result, there was  25,714 claims related to 20 products. These lawsuits were filed in 36 distinct and different federal judicial districts. In January 1962, a  co-coordinating committee for multi litigation for the United States districts courts was chosen by Earl Warren, the then chief justice. Alfred P. Murrah, who by then was the chief judge of the tenth circuit, was the chair of the committee. National depositions and document depositories were among the ad hoc procedures that the committee took as emerging issues and acted upon them.

Through careful management of the cases, termination of the electrical equipment litigation was possible by March 1967. During their working, the committee was able to acknowledge that complex similar litigation cases were becoming rampant. Federal courts were mostly affected by this. To curb the issue, in March 1964 they proposed the enactment of formal statutory foundation to solve the matter. As a result, the action led to the passage of the multidistrict litigation statute. Formation of JPML also followed as a permanent substitute for the committee.

One contradicting aspect of the multidistrict litigation statute is that it does not give the transferee court any discretion as to whether the lawsuits will be remanded for trial back to the transferee court. This is the case, even if both Courts (transferee and transferor) desire to keep the case for a trial at the transferee court. Familiarization of the issues is, however, attained by the transferee Court by the time the case reaches the trial stage. This includes their parties and hernia mesh attorneys.

As a result, the transferor court must be regularly updating itself with the happenings of the facts at the multidistrict litigation. This led  the judiciary panel on multidistrict litigation to create a court rule. The law allowed the transferee to conduct a trial itself if it wished to do so. This rule was later abolished by the United States Supreme Court in 1998. It claimed that the plain language of the MDL had to have remand back for trial at the transferor. The amendment of the MDL statute by the Congress has not yet been done to resolve the matter.

Advantages of an MDL

Some of the advantages of an MDL include efficiency and cost-effectiveness. Litigating hernia mesh lawsuits in a single court ruling means the the defendant and victims can expect more consistency. If a multidistrict litigation claim is not solved, it is sent back for a trial. Also, an MDL saves time generally associated with regular litigation. Cases filed and procedures followed in an MDL saves time as opposed to each lawsuit being determined separably.

Cost-effectiveness is  an essential element of a MDL. A MDL levels the playing field so individual victims can get their day in Court. Some hernia mesh lawsuits are too expensive for individual victims to take on large billion dollar institutions.

One contradicting aspect of the multidistrict litigation statute is that it does not give the  court any discretion as to the decision whether or not to remand the mesh lawsuit for trial. This is despite both courts desiring to keep the case for a retrial at the MDL Court. Familiarization of the issues is attained by the MDL Court by the time the hernia mesh lawsuit reaches the trial stage. This led to the judiciary panel on multidistrict litigation to create a court rule. The rule allowed the MDL Court to conduct a trial itself if it wished to do so. This rule was later abolished by the United States Supreme Court in 1998.

References
https://www.levinsimes.com/wp-content/uploads/2016/01/Abrams_Multidistrict-Litigation-consolidation_Pros-and-cons_Plaintiff-magazine.pdf
http://www.rotlaw.com/legal-library/what-is-multidistrict-litigation/