On April 10, fifty-five of the nearly 100 plaintiffs who have filed lawsuits against medical device manufacturers C.R. Bard, Davol Inc., and BD Medical Technology filed a petition asking the court to centralize all cases into multidistrict litigation (MDL). In the filing, they specifically requested that the cases be heard before a U.S. District Court for the Western District of Missouri or Ohio's Southern District. The request also excludes a specific Davol product, known as the Composix Kugel Mesh, which was the predicate device used to demonstrate “substantial equivalence” when the manufacturer sought FDA approval for subsequent mesh products under a 510(k) Premarket application.
Those last two issues are a problem for defendant C.R. Bard and Davol, which have otherwise indicated their support for MDL status. Both defendants have requested that Composix Kugel Mesh claims be included, considering the omission to be “arbitrary.” They also want the cases heard in their home state of New Jersey or the Southern District of New York.
Federally-filed lawsuits involving other hernia mesh products, including the Ethicon Physiomesh and the Atrium C-QUR have been centralized elsewhere. Ethicon, a subsidiary of Johnson & Johnson, currently faces approximately 700 complaints over its Physiomesh Flexible Composite Hernia Mesh, which was withdrawn from the market in May of 2016, in addition to a number of other mesh products. There are 30 lawsuits pending against Atrium, alleging that the C-QUR design causes inflammation, leading to numerous complications.
Consolidating cases with similar causes of action into an MDL streamlines the judicial process, making more efficient use of resources by avoiding duplicate discovery and potentially conflicting rulings from different judges. In its filing, Bard stated that while there are several venues that would be appropriate for hearing the cases, New Jersey and the Southern District of New York are “the most appropriate.”
Nine other Bard hernia cases are currently pending in the District of New Jersey, which Bard says will be “less of an administrative burden from the transfer.” They also argue that because the company is based in New Jersey, pertinent documents and witnesses will be more easily accessible. Similarly, the location of the court makes it “relatively convenient” for all parties, due to the existence of large airports and rail hubs in the region. In arguing for the Southern District of New York, Bard points out that said venue has had “extensive experience managing complex MDLs.”