By Robert E. Price
December 6th, 2012 9:00am
Earlier this year, the United States Judicial Panel for Multidistrict Litigation issued an order that executed something never seen before in Multidistrict litigation: placing not one, but four (4) separate multidistrict proceedings in the hands of a single judge.
Currently, Judge Goodwin of the United States District Court, Southern District of West Virginia, presides over the pretrial proceedings for nearly 8,000 cases where women allege injuries caused by a transvaginal mesh device. The number of cases is expected to reach over 10,000 by early next year. This past August, the panel assigned Judge Goodwin yet another multidistrict proceeding, making him responsible for the oversight of pretrial activities involving five (5) separate corporations and billions of dollars in damages alleged by permanently injured women.
Thus far, this Court has kept the litigation moving at a pace that is surprisingly swift for its size. Recently, the Court has issued a series of orders pressing device manufacturers to turn over documents without lending ear to the delay tactics and cries of “burden” that make up the most well-worn pages in a defense attorney’s playbook.
In late October, the Court ordered American Medical Systems (AMS) to turn over all of its foreign documents, an issue that AMS fought for months using various stall tactics. The Court’s order painted a cautionary tale to those attempting to assert stall tactics, as the order dictated production of foreign documents as the no-nonsense business that it should be. As the Court articulates, “The human body’s reaction to implantation of pelvic repair products does not depend on the patient’s nationality, race or native language; adverse reports from France, India, South Africa, Brazil, or Australia are as relevant as those from the United States. Medical research on the efficacy of such products is relevant whether it is written in Greek or English.” The Court ended by announcing that AMS’s position was not substantially justified and opened the door for Plaintiffs to file an affidavit seeking attorney’s fees associated with the costs of the document fight.
Then, two weeks ago, the Court again issued a no-nonsense discovery order forcing Boston Scientific to turn over its documents relating to the ProteGen sling, an issue that Boston Scientific has been fighting for months in both state and federal court. The ProteGen sling was a SUI sling device released in the late 1990’s that was pulled off the market within two years of its release due to reports of massive and debilitating infections caused by the sling’s synthetic polyester/bovine collagen blend. Even though this device was so fatally flawed, it served as the “grandfather” predicate device in which the many currently-produced transvaginal slings are predicated upon. In swift elimination of Boston Scientific’s stall tactics, the Court ordered the production of the documents to Plaintiffs.
On Thursday, December 6th, the Court intends to hold the next status conference. Among items of discussion include the possibility of setting trial dates in 2013. One can only hope that this Court will continue to hold these manufacturer’s feet to the fire and keep these proceedings moving along. Meanwhile, tens of thousands of injured women lie in wait.
Robert Price is an associate with the firm of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. Robert focuses his practice on mass torts and product liability. He is part of the Plaintiffs’ Steering Committee for the Federal Multidistrict Transvaginal Mesh Litigation and is actively involved in leadership in state court mesh litigation in addition to working in other cases involving bad drugs and defective medical devices.
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