Judge Joseph Goodwin of the U.S. District Court for Southern West Virginia is supervising the MDL involving thousands of the lawsuits filed over Bard’s pelvic mesh devices for pelvic organ prolapse and stress urinary incontinence. Goodwin earlier ordered each side in the litigation to select 100 cases for simultaneous "waves" of preparation.
That list has been culled to 185 cases; in late November those plaintiffs argued that they ought to be lumped together for trial, as was done with an MDL involving Boston Scientific (NYSE:BSX).
Boston Scientific lost the 2nd such trial, which included 4 plaintiffs who sued over its Obtryx device for treating stress urinary incontinence; the Marlborough, Mass.-based company also went down in the 1st trial over its Pinnacle pelvic organ prolapse device, which likewise involved 4 co-plaintiffs.
“By coupling this court’s innovative trial ‘wave’ work-up process with consolidated trials in multiple jurisdictions, the plaintiffs respectfully submit that the goal of resolution of cases can be accomplished with maximum efficiency and economy," the Bard plaintiffs contended. "Rule 42 consolidated trials were recently successfully employed to move several similar cases forward in the Boston Scientific MDL. Trying individual cases 1-by-1 that are triable in the same district court which involve the same allegations of defect against the same product or substantially equivalent products is a waste of the limited resources of the parties and the judiciary, and imposes a nearly impossible burden on the plaintiffs, their counsel, and their experts."
But Bard argued that the sole case to make it to trial in its MDL involved pelvic organ prolapse devices, not the stress urinary incontinence products which constitute about 70% of the cases in the MDL, according to court documents.
"Against this backdrop, plaintiffs now propose to hold numerous consolidated trials in multiple venues. Plaintiffs’ motion, however, ignores well-established law regarding the scope of an MDL judge’s authority to consolidate cases for trial. In this context, consolidation also improperly minimizes the numerous factual differences – and accompanying legal distinctions – that will arise in any single trial that involves multiple, unrelated plaintiffs," Bard contended. "Despite repeated references to judicial efficiency and economy, plaintiffs’ true motivation for seeking consolidated trials is to create an inherent bias with the jury by suggesting that ‘something must be wrong’ with the product if more than 1 person is suing. This very scenario occurred in the recent consolidated trials related to another manufacturer’s pelvic mesh products. All of this will result in unfairness to the defense and severe prejudice to Bard. The heightened risk of prejudice, along with the authority precluding MDL judges from consolidating actions for trial, account for the rarity with which consolidation occurs in this context.
"Significant factual differences preclude the consolidation of these cases for trial, and Bard will suffer substantial prejudice if consolidation is permitted. Plaintiffs’ claims of judicial efficiency, convenience and economy cannot supplant basic fairness. Notwithstanding the myriad individualized issues and factual differences between each individual case, consolidated trials carry a real and formidable risk that the jury will be swayed simply by the number of plaintiffs alleging injury from the same product. That risk is too high a price for any claimed efficiency and should not be countenanced by this court," the company argued.