On May 23, 2013, there was a multidistrict litigation status conference in Charleston, West Virginia, where over 21,000 transvaginal mesh lawsuits are consolidated. The conference resulted in a tolling agreement between plaintiffs’ counsel and the various defendants.
A tolling agreement suspends the statute of limitations (time limit to file a lawsuit) for an agreed period of time. The agreements will toll the statute of limitations for unfiled cases, subject to certain conditions, until November 1, 2013. This is an important agreement not only for transvaginal mesh victims but also for the Court.
Many are of the opinion the statute of limitations in the transvaginal mesh litigation was triggered by the FDA’s Public Health Advisory on July 13, 2011. As the majority of states have two-year statute of limitations, a large number of filings was anticipated prior to the July 13, 2013 two-year mark. Although over 20,000 cases are currently pending, there are thousands of additional unfiled cases. Pursuant to the tolling agreements, potential plaintiffs with unfiled cases now have additional time in which to file claims and avoid an expected logjam of mass filings just prior to the July 13, 2013 deadline.
The number of transvaginal mesh cases continues to grow. As of May 29, 2013 there were 21,598 cases pending in the five transvaginal mesh MDLs in the Southern District of West Virginia. The number of pending cases in each multidistrict litigation is:
- MDL No. 2187 In re: C.R. Bard, Inc. with 3,407 cases filed.
- MDL No. 2325 In Re: American Medical Systems (AMS), Inc. with 6,882 cases filed.
- MDL No. 2326 In Re: Boston Scientific, Inc. with 4,225 cases filed.
- MDL No. 2327 In Re: Ethicon, Inc. with 6,657 cases filed
- MDL No. 2387 In Re: Coloplast Corp. with 427 cases filed.
In addition to the 21,598 cases currently pending in West Virginia, thousands more are pending in state court proceedings in New Jersey and Massachusetts.
As discussed in previous updates, there are a large number of transvaginal mesh trials scheduled over the next eight months. This includes the trial of Marion Carpenter v. American Medical Systems, which was originally scheduled to begin in San Bernardino California on May 13, 2013. The trial, however, has been continued until January or February 2014. The trial was greatly anticipated as it would be the first mesh trial involving a “sling.”
To date, the manufacturers have contested allegations regarding their slings, and assert the FDA Public Health Advisory only applied to mesh patches used in the treatment of pelvic organ prolapse, but not slings used in the treatment of stress urinary incontinence. Given the manufacturers’ support of their sling product, the result of the first “sling” jury trial is anticipated by both sides.
Additional “bellwether” trials are currently scheduled in the Southern District of West Virginia this summer and late fall. The first, against C.R. Bard, is currently scheduled to begin in July 2013 and involves Bard’s Avaulta kit used, to treat pelvic organ prolapse. This would be the second trial involving Bard’s Avaulta kit. The first trial, in Northern California state court, resulted in a $5.5 million verdict for the plaintiff.
Additional bellwether trials are scheduled in the New Jersey consolidated actions against C.R. Bard and Ethicon, Inc., a Johnson & Johnson subsidiary, later this year. Both sides currently are working diligently to conclude discovery in advance of these trials.
As we await these important bellwether trials, we will continue to update you on significant developments.