As it turned out, the Federal Court lawsuits against Bard / Davol alleging that Bard’s mesh is defective were consolidated into Multidistrict litigation in the Southern District of Ohio. This article explains the legal maneuvering and arguments of the mesh victim’s attorneys and Bard’s lawyers to get the lawsuits heard in what they perceived as a forum favorable to their respective positions.
Law firms representing hernia mesh victims filed a motion with the United States Judicial Panel on Multidistrict litigation (JPML). “BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR §1407 COORDINATION / CONSOLIDATION & TRANSFER OF RELATED ACTIONS TO THE SOUTHERN DISTRICT OF OHIO” The law firms were requesting that the panel transfer all Bard / Davol cases Filed in Federal Court to the Federal Court in Southern District of Ohio. The Plaintiff’s asserted that, “For reasons in Plaintiffs’ motion and as explained in detail below, the Panel should order the consolidation /coordination and transfer of the above-referenced lawsuits, and the lawsuits listed in the Schedule of Actions, to the Southern District of Ohio (Eastern Division), in Columbus, Ohio.” Id.
(Editors note: This motion was granted on 8/2/18 and the Panel commenced Multidistrict litigation in the Southern District of Ohio. Read the transfer order here.)
Motion seeks to consolidate and centralize
The motion sought to centralize and consolidate all federal lawsuits involving C.R. Bard and Bard’s subsidiary, Davol. The victim’s hernia mesh law firms were seeking to have all Bard hernia mesh and patch medical devices made of Polypropylene be consolidated as Multidistrict litigation. (IN RE: Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, MDL No. 2846)
According to the victim’s submissions, at that time there were over 50 Bard / Davol lawsuits pending in Federal Court. The mesh victims assert that Bard’ mesh medical devices are defective and dangerous. The victims are advocating for the lawsuits to be determined in the Southern District of Ohio or the Western District of Missouri
Bard responds to Plaintiff’s motion to consolidate
Bard filed a response to the victims motion entitled, “DEFENDANTS C. R. BARD, INC. AND DAVOL INC.’S RESPONSE TO PLAINTIFFS’ MOTION FOR § 1407 COORDINATION/CONSOLIDATION & TRANSFER OF RELATED ACTIONS TO THE SOUTHERN DISTRICT OF OHIO.”
Bard consents to a Multidistrict Litigation
Bard Davol’s hernia mesh law firm actually acquiesced to the victim’s request to open up a multidistrict litigation for Bard Hernia mesh lawsuits that were filed in Federal Court. Bard’s surgical mesh attorneys made it crystal clear that it should be either all or none of the Bard’s hernia mesh and hernia patch products as part of the multidistrict litigation.
The Bard Lawsuits are not a mesh class action
Keep in mind, if this Multidistrict litigation was approved by the Panel. This consolidated lawsuit is not a hernia mesh class action. As has been stated numerous times on this hernia mesh lawsuit blog, there are no hernia mesh class action lawsuits pending in the United States. There has never been a hernia mesh class action in the United States.
Bard’s mesh law firm weighs in:
Bard Davol’s hernia mesh law firm actually acquiesced to the victim’s request to open up a Multidistrict litigation for Bard Hernia mesh lawsuits that were filed in Federal Court. Bard’s surgical mesh attorneys made it crystal clear that it should be either all or none of the Bard’s hernia mesh and hernia patch products as part of the multidistrict litigation.
Bard’s high powered hernia mesh law firm tried to convince the Panel to have the consolidated lawsuits in the District of New Jersey or in the alternative, the Southern District of New York.
Bard’s hernia mesh law firm made the case for the District of New Jersey:
Bard’s surgical mesh lawyers argues the following in a failed attempt to convince the Panel to hear the lawsuits in new Jersey:
- The District of New Jersey is a convenient court for litigants and witnesses.DEFENDANTS C. R. BARD, INC. AND DAVOL INC.’S RESPONSE TO PLAINTIFFS’ MOTION FOR § 1407 COORDINATION/CONSOLIDATION & TRANSFER OF RELATED ACTIONS TO THE SOUTHERN DISTRICT OF OHIO.
- “Less of an administrative burden.” Also, it would be less of an administrative burden to have the Bard / Davol surgical mesh cases transferred than other federal district Courts. This Court is number 4 out of 25 for the most amount of Bard hernia mesh lawsuits pending. Id.
- There are currently nine Bard hernia mesh cases pending in the District of New Jersey, giving it the fourth most out of the 25 districts resolving hernia mesh lawsuits. Id.
- The District of New Jersey is very experienced in resolving complicated product liability causes of action. The Court is particularly experienced at handling Multidistrict litigation which is complicated and complex involving complex scientific and technical issues. Id.
- New Jersey Federal District Court has 35 judges capable of resolving the Bard mesh lawsuits.
- Vast experience handling Multidistrict litigation similar to the hernia mesh lawsuits pending against Bard Davol. Id.
- There are judges in New Jerseywith hernia mesh lawsuit experience such as: Chief Judge Jose L. Linares; Judge Madeline Cox Arleo and Claire C. Cecchi. Id.
- C.R. Bard has a headquarters in new Jersey. Near Davol’s location in Rhode Island. The New Jesey District Court is convenients to important witnesses and near evidence. The JPML has utilized, in past decisions, the reasoning that the location of the Defendant is important. Id.
- The District of New Jersey Federal Court is a fairly convenient Court to the litigants, parties and witnesses. There are several huge airports in New Jersey and there are tons of non stop flights to New Jersey. All in all, the court is accessible and very convenient. Id.
- There are lots of hotels in the area and is accessible by rail. Id.
Bard’s defense attorneys advocated for the hernia mesh lawsuit to be heard in the Southern District of New York
- Bard argued that the Southern District of New York is convenient for litigants and witnesses which will aid in “promot[ing] the just and efficient conduct of [the coordinated] actions,” Id.
- The Southern District of New York has 10 pending hernia mesh lawsuits which is the 2nd highest of all Federal District Courts handling hernia mesh lawsuits. Id.
- “Moreover, the Southern District of New York is well-equipped to handle and manage these large and complex actions and has extensive experience managing complex MDLs. Given the large number of judges and experience, the Panel has transferred many MDLs to the Southern District of New York – by far the largest number of MDLs transferred to any district.” Id., JPML Litigation Statistics by MDL, Terminated MDL
- There are 43 Judges presiding over legal matters in the Southern District of New York. 31 of the 42 Judges have handled at least one MDL. Id.
- The Southern District of New York has a lot of experience in dealing with Multidistrict litigation pertaining to prescription Medical devices. There are currently 5 mdl’s pending before the District. Id.
- Eight of the Judges from the Southern District of New York are presiding over hernia mesh lawsuits: Judge Naomi Reice Buchwald; Judge Valerie E. Caproni; Judge Andrew L. Carter, Jr.; Judge P. Kevin Castel; Judge Katherine Polk Failla; Judge Paul G. Gardephe; Judge Lewis A. Kaplan; and Judge Lorna G. Schofield. Id., JPML Litigation Statistics by MDL
- “The Southern District of New York has the most proven track record of handling multidistrict litigation of any district. The Southern District of New York also sits in close proximity to the headquarters of C. R. Bard (New Jersey) and Davol (Rhode Island), giving it a convenience factor that is similar to the District of New Jersey’s.” Id.
- “See, e.g., In re: Keurig Green Mountain Single-Serve Coffee Anti-Trust Litigation, 24 F. Supp. 3d 1361, 1363 (U.S.J.P.M.L. 2014) (defendant headquartered in Vermont, “and thus the common evidence will be reasonable accessible from this location”); In re; Mirena IUD Products Liability Litigation, 938 F. Supp. 2d 1355, 1358 (U.S.J.P.M.L. 2013) (defendants located in New York, New Jersey, Connecticut, and Pennsylvania, so “the primary witnesses and documentary evidence on the common factual issues will be located in New York and the surrounding area”). Id.
- “Finally, the Southern District of New York, and New York City in particular, is a geographically accessible and convenient forum for all parties and witnesses. Three major airports serve New York City (LaGuardia, John F. Kennedy, and Newark), all of which are less than eighteen miles from the courthouse and offer numerous non-stop flights every day to cities across the country, as well as train services to neighboring states. The Panel has recognized New York City’s central location and accessibility in finding that the Southern District of New York is an appropriate MDL forum. See, e.g., In re Rhodia S.A., Securities Litigation, 398 F. Supp. 2d 1359, 1360 (U.S.J.P.M.L. 2005). Id.
Types of Bard hernia mesh we are reviewing: