Tens of thousands of product liability lawsuits have been filed against the makers of a medical device used to repair hernias. Some hernia mesh lawsuits have been ongoing for over five years. In recent months, a number of significant developments have occurred that could impact the filing of new lawsuits and the resolution of outstanding cases.
What Is Hernia Mesh?
A hernia occurs when tissue from one part of your body pushes through surrounding muscle or tissue. Tissue can bulge or protrude during strenuous activities or when you move into certain positions. Hernias often occur in the lower abdomen or groin and can cause discomfort or pain.
Repairing a hernia usually requires surgery. Hundreds of thousands of hernia repair surgeries are performed in the U.S. every year. Most are performed as outpatient procedures, using minimally invasive techniques like laparoscopy and robotic surgical assistance.
To repair a hernia, a surgeon pushes the herniated tissue back into place and then repairs and reinforces the torn barrier with stitches or surgical mesh. Without the reinforcement, a hernia can reoccur. Unfortunately, the mesh can cause many other complications. These include:
- Adhesion. Scar tissue can form around the mesh and adhere it to nearby organs or tissues, potentially disrupting their normal functions and causing pain.
- Migration. If the mesh becomes dislodged, it can move around the abdominal cavity, potentially perforating other organs and causing pain.
- Infection. Infection can occur at the repair site or if the mesh detaches and migrates.
- Rejection. Although rare, the surgical mesh can trigger an immune response, leading to inflammation, bleeding and pain.
- Failure. Detachment of the mesh can cause a recurrence of the hernia.
These complications can necessitate additional surgery, medication and treatment, increasing a patient's risk of an adverse outcome. They can also cause significant pain, suffering and impairment.
What Are the Hernia Mesh Lawsuits?
The hernia mesh lawsuits are product liability claims against multiple medical device companies, including C.R. Bard (now part of Becton Dickinson), Ethicon (a subsidiary of Johnson & Johnson), Covidien, Genzyme (owned by Sanofi) and Atrium Medical Corp. They relate to multiple surgical mesh products used to repair hernias.
Plaintiffs allege the products were defectively designed and manufactured. They accuse manufacturers of misleading doctors and patients about the safety of their products, intentionally concealing known dangers and defects. The plaintiffs’ injuries include pain, infection, mesh migration, mesh shrinkage, organ perforation and recurrent hernias. The lawsuits seek compensation for financial losses and physical and emotional injuries.
Federal courts use a system called "multidistrict litigation" (MDL) to efficiently handle cases like these. One judge decides common questions of fact (like whether specific evidence or testimony is admissible), handles procedural issues (such as scheduling and deadlines) and oversees discovery (exchanging documents and taking depositions). Unlike a class action lawsuit, each case goes to trial separately in the court where it was filed.
There are three active MDLs relating to hernia mesh lawsuits. They are:
- The Bard Hernia Mesh MDL: In re: Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Lit. (MDL 2846, USDC Southern District of Ohio)
- The Covidien Hernia Mesh MDL: In Re: Covidien Hernia Mesh Products Liability Litigation No. II (MDL 3029, USDC Massachusetts)
- Atrium C-Qur Hernia Mesh MDL In re: Atrium Medical Corp. C-Qur Mesh Products Liability Litigation (MDL 2753, USDC New Hampshire)
The MDL judge designates a few cases as "bellwether" cases. These are the first to go to trial and usually predict how other cases will fare. If juries return high verdicts in the bellwether cases, defendants are more likely to settle.
What Is the Latest Update on Bard Hernia Mesh Lawsuits?
The Bard Hernia Mesh MDL 2846 has been active since 2018. While the first bellwether case resulted in a defense verdict, the jury in the second awarded $250,000 to the plaintiff (Milanesi v. C.R. Bard, Inc., et al.). The third bellwether case went to trial in October 2023, resulting in a $500,000 verdict for the plaintiff (Stinson v. Davol, Inc., et al.)
Separate from the MDL, in August 2022, a Rhode Island jury awarded a plaintiff $4.8 million in a state court hernia mesh case against Bard. All but $250,000 of the verdict survived a challenge to the appellate court. (Trevino v. Davol Inc. and C.R. Bard Inc.)
Many new cases have been added to the Bard MDL in the first few months of 2024, bringing the total number of cases to 22,896 at the end of May. The parties engaged in a two-day mediation with a court-appointed mediator in March 2024 but could not negotiate a global settlement.
What Is the Latest Update on Covidien Hernia Mesh Lawsuits?
The Covidien MDL schedule is far behind the Bard lawsuits. The order of trials and potential trial dates won't be determined until at least September 2025. As of June 2024, the MDL has over 1,200 cases, but there are another 5,700 lawsuits in Massachusetts state courts (where Covidien is based). Plaintiffs are actively joining this lawsuit, which is still early in the discovery process.
Will Bard Settle Out of Court for Hernia Mesh Claims?
Bard and other manufacturers have settled many hernia mesh lawsuits out of court. Companies often negotiate "global" settlements that resolve all the cases in an MDL. In 2011, Bard paid $184 million to settle approximately 2,700 hernia mesh cases (Kugel Mesh Hernia Patch litigation, MDL 1842, USDC Rhode Island).
The judge in the ongoing Bard MDL canceled the fourth bellwether trial, which was to begin in April 2024, and encouraged the parties to negotiate a settlement. If they cannot do so by the end of June 2024, the judge will begin sending the individual cases back to where they were filed so the courts can schedule them for trial.
What Is the Hernia Mesh Lawsuit Average Payout?
In the 2011 Bard settlement, each of the 2,700 plaintiffs received approximately $60,000 (with the remainder going to attorneys' fees and costs). However, every product liability settlement differs. Since most settlements are confidential, it is challenging to estimate the value of the average plaintiff's recovery.
Patients who can establish they have one of the hernia mesh products at issue may recover their documented economic damages, including lost wages, insurance deductibles, out-of-pocket surgical costs and other expenses. The value of a person's pain, suffering and other non-economic damages depends on the nature, severity and permanence of their injuries.
