Johnson & Johnson’s Ethicon subsidiary recently won a hernia mesh lawsuit that was dismissed. However, before jumping to any conclusions about whether hernia mesh lawsuits, in general, will be successful, it is important to understand the context behind this dismissal. Ethicon’s win was based solely on the facts of this case as opposed to any broader statement beyond that. Here, this particular defendant did not state a claim that could form the basis for relief. No jury has yet reached the merits of these claims. However, juries will soon begin hearing hernia mesh lawsuits in what may become one of the larger medical device mass torts cases of all time.
Hernia Mesh Lawsuits Will Soon Be Tried
There are thousands of lawsuits that have been filed against the makers of hernia mesh. This small polypropylene strip is at the core of hernia surgery that has been billed as routine. Surgeons insert the mesh as a way of reinforcing the affected area. The hernia mesh remains in the body since it is a synthetic material that is not biodegradable.
However, the hernia mesh is prone to shifting out of place or disintegrating in the body. When that happens, patients are subject to a lifetime of pain and more surgeries. Patients are coming forward with their own personal horror stories of lives ruined by this surgery that they were promised would be routine.
Now, there are multi-district lawsuits against the major manufacturers of hernia mesh. This includes Ethicon, who is one of the market leaders in this area. The cases have been filed in both federal and state courts. Many of the cases against Ethicon have been filed in state court New Jersey, where Johnson & Johnson is headquartered.
The Court Did Not Rule About the Mesh Itself
Here, before we discuss the specifics of Ethicon’s victory, we want to stress once again that the New Jersey court did not find that the hernia mesh was not defective. Instead, the issue revolved around not knowing the proper defendant in the case.
The plaintiff and her husband filed the lawsuit after her hernia surgery left her with severe complications. The plaintiff underwent hernia surgery in California. After her surgery, she was left with significant and long-lasting complications.
The plaintiff had some difficulty in identifying the exact hernia mesh that caused her damage. The surgeon’s notes referred to Prolene mesh, which is manufactured by Ethicon. However, there were still questions about who made the polypropylene mesh. The surgeon had testified that he used the term “Prolene mesh” to refer generally to any kind of hernia mesh. This would be comparable to someone using the word “Coke” as a shorthand to refer to any kind of cola or soda.
The uncertainty was compounded by the fact that Ethicon introduced its sales records into evidence in the case. These records did not show that they made any sales at the time to this hospital in California. Absent any other proof, the plaintiff’s case was solely reliant on the opinion of her expert witness.
The Expert Witness Gave a “Net Opinion”
The trial judge was unpersuaded and unimpressed with the plaintiff’s expert. The problem was that the plaintiff’s expert did not do much more than just review the evidence and just opine that it was their opinion that the mesh was made by Ethicon. This was based solely on the fact that the surgical notes contained the words “Prolone mesh.” The expert did not get into any scientific evidence that would show that the plaintiff received mesh made by the defendant. The trial judge characterized this as a “net opinion” that was not sufficient to be a part of any proof. The appeals court judge agreed with the trial judge’s opinion.
The plaintiff also tried to use the “market share doctrine” to hold Ethicon liable. This doctrine would make a defendant liable based on their market share when the manufacturer of the product cannot be proved. However, this doctrine could only be used when hernia meshes are largely identical and the defendant has a substantial market share. These requirements were not met in this case.
The Plaintiff’s Attorney Tried to Expand Discovery at the Last Minute
Here, there was also some conduct on the part of the plaintiff’s attorney with which the judge took issue. The attorney tried to increase the scope of discovery shortly before the court-imposed deadline. Here, the court noted that the attorney had nearly three years to discover the evidence that they were now trying to get and did not deserve to expand discovery at the last second when they may have realized that they had insufficient evidence. The attorney introduced questions at the last minute that could not possibly have been resolved by the discovery deadline.
The plaintiff had the mesh removed from her body at a certain point. Conceivably, there would have been plenty of time to conduct tests of the chemical and physical properties of it in order to compare it to Ethicon’s mesh. Alternatively, these tests could have revealed who exactly made the medical device. The result of this case was a judgment more about the trial strategy of the plaintiff as opposed to whether the mesh was defective.
This result is seemingly unfair to the plaintiff who has no way of knowing who made the hernia mesh that has caused her such grave problems. However, she would still need to prove who the proper defendant is notwithstanding her doctor and hospital’s failures to track which hernia mesh she received. Here, there is a chance that she could have proved the manufacturer had she been more diligent about conducting discovery before the deadline. Then, the court would have reached the merits of the case to determine whether the hernia mesh was defective. As such, this case does not have any precedential value for any of the other pending hernia mesh cases.
For now, observers are waiting for the bellwether cases to be tried. Each of the major hernia mesh litigations has bellwether cases that were set to be tried this spring. However, that was before COVID-19 closed courthouses and postponed dockets. If these initial cases are successful, there could be a tidal wave of litigation by the many thousands of people who have suffered lifelong consequences from a supposedly simple surgery.
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