Boston Scientific (NYSE:BSX) last week lost a bid to remove 4 product liability lawsuits from the multi-district litigation filed over its Pinnacle pelvic mesh device when a federal judge dismissed its motion to sever and applied the ruling to all past and future cases added to the MDL.
The Marlborough, Mass.-based medical device company as of August 5 was facing more than 23,000 similar lawsuits in state and federal courts, Boston Scientific said in a regulatory filing this month. Some 1,700 have been consolidated under a Massachusetts state court, the company said; the federal cases have been gathered into an MDL under Judge Joseph Goodwin of the U.S. District Court for Western Virginia.
In late July, Boston Scientific won the 1st personal injury lawsuit to go to trial over its Pinnacle pelvic mesh product, with a Massachusetts jury finding that the device was properly designed and that the medical device company gave adequate warning about risks. Its 2nd bellwether trial kicked off in the same Bay State court August 14.
In the federal MDL, Boston Scientific earlier this month asked Goodwin to toss 4 cases from the MDL, arguing that they were too different for inclusion.
"Discovery has revealed that each of these cases presents highly individualized facts, with substantial, meaningful differences that warrant severance. They involve the use of [the] Pinnacle pelvic floor repair kit in different patients, with different health histories, by different implanting physicians, to treat different conditions, at different times, alleging different resulting injuries, after different lengths of exposure and resulting in different treatment courses. They also involve different treating doctors, and plaintiffs rely on different case-specific experts presenting different, and often conflicting, opinions," the company argued in court documents. "Commonalities in law, fact, witnesses and evidence originally anticipated by the court when consolidating these cases are non-existent. Any limited benefit from consolidation is greatly outweighed by the likelihood [of] jury confusion and prejudice. Consolidation is no longer appropriate and the cases should be severed."
The plaintiffs countered that the motion "is merely BSC’s latest effort in opposition to any attempt by the court to move this litigation towards resolution," according to the documents, and would create "enormous procedural hurdles" for both the court and the plaintiffs.
"During the initial bellwether trial process, which was intended to have multiple individual plaintiff trials, BSC revoked its (at least) implicit consent to try bellwether cases in this court. As these 4 cases are nearing trial, and having successfully thwarted individual bellwether trials, BSC now urges that this court should reconsider its decision more than 4 months ago to consolidate these cases for trial. However, BSC conspicuously fails to mention its prior conduct, or the enormous procedural hurdles faced by this court and the plaintiffs in this MDL," lead plaintiff Amal Eghnayem argued.
Goodwin denied Boston’s motion in an August 18 ruling, writing that he was "unpersuaded that the barriers suggested by defendants in a consolidated trial are insurmountable or will result in the prejudice suggested by Boston Scientific."
The ruling applies to all cases in the MDL filed through August 15, according to the documents.
