Possible Expansion of Vaginal Mesh Litigation to Include Coloplast

A panel of federal judges will meet on Thursday, July 26, to determine whether it will be necessary to create a sixth multidistrict litigation (MDL), expanding the litigation from the current five vaginal mesh MDLs.

Four MDLs are consolidated in Charleston, West Virginia in the U.S. District Court for the Southern District of West Virginia with the Honorable Judge Joseph R. Goodwin presiding. The other MDL is in the U.S. District Court for the Middle District of Georgia.  The sixth MDL would include cases filed against Mentor Corp. for mesh sold by Coloplast. Mentor developed the vaginal mesh products and sold them to Coloplast in 2006, reports About Lawsuits.  A new MDL could be established in West Virginia or Georgia, where existing vaginal mesh-related MDLs are currently pending, or the Judicial Panel on Multi-District Litigation (JPML) could send the cases to another court or decide that an MDL is not necessary (which is unlikely).

Coloplast, of Minneapolis, Minnesota, makers of mesh products for POP (pelvic organ proplapse) and SUI (stress urinary incontinence), include the Aris Transobturator Sling, Exair, Restorelle, Minitape, Omnisure, Supris Suprapublic Sling, T-sling,  and the Novasilk sling.  Coloplast’s lawyers  requested a separate MDL be established just for Coloplast pelvic mesh.  Mentor OBTape litigation was established in 2004; some of the first-filed cases in that MDL settled during the first bellwether trial, while a number of recently filed cases are still pending and being worked up for trials.  Injury Lawyer News reports there have been 24 plaintiffs with Coloplast lawsuits so far. The other MDL actions name mesh manufacturers Johnson & Johnson’s Ethicon division, Boston Scientific, American Medical Systems, C.R. Bard, and Tyco Covidian.

Why do we need a sixth MDL?

Opening up another MDL will make it easier for women to seek compensation for their injuries, which include mesh erosion into organs, perforation, vaginal scarring, urinary problems, nerve injury and pain, among other side effects. Vaginal mesh was designed to repair pelvic organ prolapse (POP) and stress urinary incontinence (SUI) but oftentimes, those conditions return as the mesh complications occur.  The litigation also alleges the manufacturers did not test the devices before marketing them; that they were defective; and that they failed to warn the patient and doctor about vaginal mesh risks.

Plaintiffs in all mesh cases now number in the thousands.  Despite tens of thousands of women suffering catastrophic injuries due to defective vaginal mesh devices and a very high surgical complication rate, thousands of these procedures are still occurring every year despite the complication rate which remains high.  An exact percentage is unknown since the U.S. does not track implanted medical devices.  The use of transvaginal mesh has been criticized for nearly four years with the FDA issuing several safety alerts to patients and implanting surgeons, but, even today, patients are still starved for accurate and unbiased information about the risks of these devices and whether those risks far outweigh the benefits to be gained.

Filing an action in an MDL allows each plaintiff to receive an individual award that will vary depending on the extent of her injuries.  MDLs are coordinated proceedings that include a number of individual lawsuits.  MDLs are often confused with class actions due to the consolidation which helps in fine-tuning generic liability and causation issues, but injured plaintiffs do not lose their individuality by pursuing a claim through the MDL proceeds.  Rulings are consistent under one judge and discovery and the pre-trial process can be streamlined, allowing these cases to make it to court sooner and at a cost that is far lower than if the cases were to be pursued as individual, non-coordinated claims.

In the transvaginal mesh and bladder sling litigations, women are seeking damages for out of pocket expenses such as lost wages, medical expenses, loss of future earnings,  future medical and nursing care expenses, disability, disfigurement, emotional trauma, loss on consortium, and pain and suffering among other costs.  In some cases, the estate of a woman who died from mesh complications has been filed by her loved ones to seek compensation for her wrongful death, which under varying state laws would include claims of the estate brought on behalf of the probate beneficiaries as well as personal claims for pain and suffering due to the loss of loved ones who are defined as legal survivors under state law (which usually includes a spouse and minor children and, in certain states, an adult child if there is no suviving spouse).