Hernia Mesh Lawsuit News and Updates 2019

Mesh Lawsuit News: Idaho Judge Tosses One Federal Mesh Lawsuit, NY Judge Allows Another To Proceed

December 31, 2019
Author: Daniel Gala

Despite tens of thousands of such cases for years having been centralized in multidistrict litigation (MDL), lawsuits over allegedly dangerous mesh implants continue to be filed and heard throughout the United States, with two federal judges nearly across the country from one another having recently reached vastly different conclusions regarding the hernia mesh cases before them.

In Idaho, US District Judge B. Lynne Winmill ruled in a judgement and order issued December 16 that a case filed against Johnson & Johnson and its mesh-making subsidiary Ethicon would be “dismissed in its entirety.”

Meanwhile, in New York, US District Judge Louis L. Stanton has allowed key claims against surgical-mesh-maker Covidien to proceed, pursuant to a November 27 order.

That one federal surgical mesh case will now proceed while another has been tossed out of court shows the large number of variables that continue to impact mesh-related litigation despite such cases having been prevalent now for a number of years. These variables—including the lawsuit’s venue, the surgical mesh device in question, the individual patient’s health history, and the efficacy and competence of plaintiff’s counsel—still make for a wide range of relatively unpredictable outcomes.

The Idaho Case

Arising from a complaint filed in March 2018, the Idaho-based hernia mesh lawsuit was filed by husband-and-wife plaintiffs Ronald Grunig and Shannon Grunig, who allege that, after having Ethicon Proceed mesh surgically implanted to repair a hernia in 2010, Ronald suffered from a serious bowel obstruction in 2017. According to the lawsuit, the Ethicon mesh implant was to blame.

“Plaintiff was taken to the Operative Suite of the hospital where Dr. Forrest Fredline, D.O. performed an exploratory ‘laparotomy with lysis of adhesions,’” the complaint states. “It is noted in the operative report that ‘at the time of surgery, there was noted to be dense inflammatory attachment between a distal loop of the small bowel and the anterior abdominal wall mesh.’ When describing the procedure, the surgeon stated how the ‘bowel was slowly dissected off of the underlying mesh’ and describes ‘removal of a portion of the mesh.’”

The Grunigs alleged that Ronald’s injuries were a result of the way in which the Ethicon mesh device was designed and/or made.

“Defendants’ Proceed was defectively designed and/or manufactured, was not reasonably safe for its intended use in hernia repair, and the risks of the design outweighed any potential benefits associated with its design,” their lawsuit argued. “As a result of the defective design and/or manufacture of Proceed, there was an unreasonable risk of severe adverse reactions to the mesh or mesh components including: chronic pain; recurrence of hernia; foreign body response; rejection; infection; inadequate or failure of incorporation/ingrowth; migration; scarification; deformation of mesh; improper wound healing; excessive and chronic inflammation; adhesions to internal organs; erosion; abscess; fistula formation; granulomatous response; seroma formation; nerve damage; tissue damage and/or death; and other complications.”

The Grunig’s complaint contained five counts in total: strict liability for defective manufacture; strict liability for defective design; strict product liability for failure to warn; negligence; and loss of consortium for Shannon Grunig. Ultimately, Judge Winmill would dismiss all five claims.

Though the lawsuit did not request a specific dollar amount, it argues that “Plaintiff Ronald Grunig is entitled to recover for his personal injuries; past, present, and future medical and related expenses; and past, present and future mental and physical pain and suffering; and Plaintiff Shannon Grunig is entitled to recover for her loss of consortium and services.” Additionally, the lawsuit requests that punitive damages be assessed against defendants J&J and Ethicon.

However, in his December 16 order granting the defendants’ motion for summary judgment, Judge Winmill found that the Grunig’s had failed to assert a proper factual basis to support their claims.

“Under Idaho law, to prevail on their manufacturing and design defect-based strict liability claims, Plaintiffs must prove that the mesh was defective, i.e. that it malfunctioned, and must also negate other causes for the Mr. Grunig’s [sic] injuries,” Judge Winmill’s order states.

In finding that the plaintiffs failed to adequately satisfy the required elements—even enough to meet the relatively low standard necessary to overcome a motion for summary judgment—Judge Winmill relied heavily on the testimony of two experts for J&J, saying that “the Court finds the question of whether the mesh was defective and caused Mr. Grunig’s bowl [sic] obstruction is the sort of complex issue that requires expert interpretation and proof…As such, the Court will turn to the expert information regarding this question.”

Turning to the experts, Judge Winmill finds that the opinions expressed by the two J&J experts on whom the defendants rely in their motion for summary judgment—and who contend that the Proceed mesh is not defectively designed or manufactured and that the injuries suffered by the plaintiff were within the known risks associated with the device—aligns with operative reports and testimony from the surgeon who performed Robert Grunig’s 2010 hernia-repair surgery, Dr. Ballantyne.

“Dr. Ballantyne testified that he was aware, in 2010, of the risks associated with using surgical mesh, such as the Ethicon Proceed mesh, in bowel, surgeries,” Judge Winmill’s order states. “Dr. Ballantyne testified that the risks of using surgical mesh include inflammation of adhesion formation...Notably the Clinical Evaluation Report for Proceed Surgical Mesh, lists potential adverse reactions of mesh implantation as ‘those typically associated with surgery of implantable materials including inflammation’ and ‘adhesion formation.’”

Further, Judge Winmill finds that the plaintiffs have not met the standard of proving that some other cause was not the source of Mr. Grunig’s injuries.

“These facts provide the reasonably likely alternative that it was Mr. Grunig’s fairly extensive history of abdominal surgeries, including the hernia repair of 2010, that caused the adhesions resulting obstruction [sic] of his bowel,” Judge Winmill writes. “Plaintiffs fail to point to any evidence that negates this alternative cause.”

As a result, Judge Wynmill finds that “Plaintiffs failed to meet their burden to identify facts showing a genuine issue for trial sufficient to defeat Defendants’ motion for summary judgment as to all claims.”

In other words, Judge Wynmill granted J&J’s and Ethicon’s request to toss the case out of court, though the plaintiffs still may appeal the decision.

The New York Case

Meanwhile, in New York, United States District Judge Louis L. Stanton, writing for the Southern District of New York, has allowed certain claims to proceed against the defendant medical-device-maker Covidien, partially due to differences between Idaho state law and New York state law.

The case, brought by husband-and-wife Kenneth and Martha Dunham, initially was dismissed in May 2019, though the court granted leave for the plaintiffs to file an amended complaint in order to address certain deficiencies. The plaintiffs did so, and the defendants subsequently filed a new motion to dismiss the amended lawsuit.

However, in an opinion and order filed November 27, Judge Stanton allowed certain of the plaintiffs’ claims to stand, meaning the lawsuit will be permitted to proceed.

The plaintiffs sued Covidien alleging that two different Covidien mesh devices—ProGrip mesh and Parietex mesh—had caused injuries to Mr. Dunham, who had the devices implanted in order to repair a hernia. While the court dismissed all but one of the Dunhams’ claims based on the ProGrip mesh, Judge Stanton allowed the claims based on the Parietex mesh to stand.

“[Defendants’ motion for summary judgment] is denied as to Mr. Dunham’s claims for defective design, failure to warn about the Parietex mesh, negligent misrepresentation, consumer fraud…as to the Parietex mesh, and the breach of implied warranty with regard to both meshes’ defective design and the Parietex mesh’s failure to warn, as well as Mrs. Dunham’s claims for loss of consortium derived from any of those claims,” the November 27 order rules.

Conclusion

These two different rulings delivered in two similar hernia-mesh cases just weeks apart shows that—despite mounting evidence of the dangers of surgical mesh implants on the whole—the success or failure of such cases still hinge on a large number of variables, many of which are outside the plaintiff’s control.

One choice that always remains within the plaintiff’s power, however, is the choice of legal counsel. As these cases illustrate, a plaintiff’s lawyer is responsible for making any number of crucial strategic decisions, from how the complaint is drafted to the venue in which it is filed, that ultimately could play a deciding role in a case’s outcome.

If you or a loved one has suffered injury as a result of a surgical mesh implant, contact the experienced attorneys at TheLawFirm.com today for a free legal consultation with a licensed attorney!

Sources:

United States District Court District of Idaho. (16 December 2019). Judgment. Ronald Grunig and Shannon Grunig, husband and wife, v. Johnson & Johnson, a New Jersey Corporation, and Ethicon, a New Jersey Corporation. Case No. 1:18-cv-00111-BLW

United States District Court District of Idaho. (16 December 2019.) Memorandum Decision And Order. Ronald Grunig and Shannon Grunig, husband and wife, v. Johnson & Johnson, a New Jersey Corporation, and Ethicon, a New Jersey Corporation. Case No. 1:18-cv-00111-BLW

United States District Court District of Idaho. (7 March 2019). Complaint And Demand For Jury Trial. Ronald Grunig and Shannon Grunig, husband and wife, v. Johnson & Johnson, a New Jersey Corporation, and Ethicon, a New Jersey Corporation. Case No. 1:18-cv-00111-BLW

United States District Court Southern District of New York. (27 November 2019). Opinion & Order. Kenneth Dunham and Martha Dunham, Plaintiffs, v. Covidien LP, Defendant. Case 1:19-cv-2851-LLS