Case Totals Continue to Increase for Multiple Ethicon Hernia Mesh Products
By: Joshua S. Kincannon
The number of product liability cases filed against Johnson and Johnson and Ethicon for their defective hernia mesh products is on the rise. At the present rate, we can expect New Jersey state court cases to reach or surpass 3,000 by the Fall of 2021.
Cases have been consolidated into three litigations based on product, and all are set to be argued in Atlantic County, New Jersey, before the Honorable John C. Porto. All cases allege that these Johnson and Johnson and Ethicon polypropylene hernia mesh products are defective in their design, manufacture, and warnings. The following Ethicon products are included in the New Jersey Multi-County Litigations:
- PHYSIOMESH: In Re Physiomesh Litigation Flexible Composite Mesh, Case No. 627, Superior Court of New Jersey, Law Division, Atlantic County.
- PROCEED FLAT MESH and the PROCEED VENTRAL PATCH: In re Proceed Mesh Litigation, Case No. 630, Superior Court of New Jersey Law Division, Atlantic County.
- PROLENE HERNIA SYSTEM (“PHS”): In re Prolene Hernia System Litigation, Case No: 633, Superior Court of New Jersey Law Division, Atlantic County.
Plaintiffs allege that the Physiomesh implant is defective due to the dual-sided Monocryl coating, which causes the mesh to fail to adhere and leads to migration, recurrence, and device failure. As a result of these defects, the Physiomesh device was voluntarily withdrawn from the market in May of 2016.
Proceed Flat Mesh/Proceed Ventral Patch Litigation
The Proceed line of products differs from Physiomesh in that the polypropylene mesh core is coated with oxidized regenerated cellulose (“ORC”) as opposed to Monocryl. ORC is a poor coating that doesn’t work. It results in a chronic inflammatory response and severe adhesion formation when it fails and the patient’s bowels come into contact with the bare polypropylene mesh core. Further, the Proceed meshes are sterilized using a process known as gamma irradiation in air. This causes a breakdown of the molecular chains of the polypropylene core, weakening the mesh and rendering it ineffective for its designed, intended use. No other mesh product is coated in ORC or sterilized using gamma irradiation in air. Unlike the Physiomesh device, the Proceed line of products continues to be manufactured and sold.
The Prolene Hernia System mesh is manufactured from a heavyweight, small-pore polypropylene mesh. It is a three-dimensional mesh product used primarily for inguinal hernia repair. Bare polypropylene triggers an intense, chronic inflammatory reaction when implanted in the human body. The PHS design only exacerbates this inherent material defect, as the sheer amount of polypropylene coupled with its dense hydrophobic design increases this deleterious inflammatory process exponentially. Defendants continue to sell this product.
Current Status of Litigations
Discovery is ongoing in these cases, with depositions of corporate witnesses continuing throughout the summer. The initial Bellwether pools have been chosen and those cases are being worked up for possible inclusion into the final trial pools. Selection of trial pool cases begins on June 1st with the Physiomesh litigation, where each side and the court will select a total of six cases for the final trial pool. The Proceed trial pool will be chosen in August, with each side and the court choosing nine cases. The PHS pool will be chosen in November, with four court picks and two picks each for plaintiffs and defendants. Trials are scheduled ninety days apart, beginning in May of 2022.
About the Author
Joshua S. Kincannon, Counsel in Wilentz, Goldman & Spitzer, P.A.’s Defective Drug & Device litigation practice, is lead liaison counsel on the New Jersey Ethicon Hernia Mesh cases. He can be reached at: firstname.lastname@example.org.