Hernia Mesh Updates, New Torts Examined by JPML, CPAP Developments and Upcoming MTMP Conference – 3/28/24 – Tort Talk Thursday

By Susan Barfield
March 28, 2024

Susan B. (0:00:06) – Hello, everyone. Welcome to another episode of Tort Talk Thursday with Joe Fantini of Rosen Injury Lawyers. Joe, as always, grateful for you to spend a little time with me and talking about all things mass tort. And so I know one of the first things we were going to talk about today is you providing a little update and insight on hernia mesh and what’s going on with the litigation.

Joe F. (0:00:27) – Yeah, thanks for having me again, Susan. A lot going on in the mass tort world, especially with the hernia mesh litigation. So, as you know, we’ve been working on this for a number of years. Each of the manufacturers has a number of products, and each one of them almost has their own litigation going on. So the one that’s different is the bard litigation. So bard, they control about 50% the market share. So ongoing there, there’s an MDL with over 21,000 cases, and then also going on a Bard Rhode Island state court, which also has almost 20,000 cases. So, as you remember, about a month ago, the MDL judge canceled the fourth bellwether trial and ordered the parties to mediation. There was a mediation the beginning of March, and then the second round of in person mediations is going on this week over a two day period. I’m actually hearing some positive developments going on with that, so I think we’ll be able to get a settlement here coming up probably within the next 60 days or less. The parties have to report to the judge if by mid May, they’re at an impasse. But like I said, I’m hearing some positive things. So I believe in this litigation will likely have a global settlement, and that would encompass all of the cases in the MDL and as well as Bard Rhode Island. So that would be a great development. But stay tuned. We’ll have more updates as that goes forward. The other update we have is related to the Strattice hernia mesh. So, Strattice, this was a product manufactured by LifeCell, and it’s different from the regular hernia meshes we usually work on. Those meshes involved polypropylene, which is a product that’s almost similar to the coating on your raincoat. So it’s crazy to think that type of product would be implanted in you. But Strattice is a biologic mesh, which is made from a cadaver, and it’s made from pig. So this product is totally different. It’s not a very common product. And so there’s litigation going on in New Jersey state court, where there’s about 100 cases, and then also in federal court where there’s not a formal MDL, but in New Jersey federal court, a couple hundred cases. So we have about four or 500 cases total. And the first case went to trial. It started in the beginning of March. It was before Judge Porto in New Jersey state court. A three week trial unfortunately returned at a defense verdict. So this was a pretty surprising result. We were hoping, obviously, for a plaintiff verdict. The details are, it was a somewhat strong case, but because people that get Strattice are usually the more complicated cases, that seemed to be what led to the defense verdict. There should be another Strattice case go to trial before the end of 2024. But due to the differences in the products, I don’t think this outcome is going to have much impact on Bard or Covidien or the other litigations that are ongoing.

Susan B. (0:03:10) – Okay, I know we have been following, and you talked about the baby food and the sex trafficking cases. Have you been hearing any updates on those?

Joe F. (0:03:19) – Yeah. So positive updates with those litigations this last week here in March, there’s going to be a JPML hearing. So that’s the judicial panel, a multi district litigation. And so there’s a couple of potential MDLs that are before them. The two most exciting and the ones getting the most buzz here is the baby food litigation and then also the sex trafficking. So, as you remember, both of these litigations previously went before the panel and they were denied MDL status. This time, we seem to have everybody working together and on the same side. And I anticipate that we’ll have two new MDLs for probably maybe by the end of next week. These litigations are going to get a lot of buzz. So along with Suboxone and Ozempic, those four will really make up the litigations that we’re going to be focusing on a lot in 2024. So expect to hear a ruling usually about a week to ten days after the JPML. So there’s some ones to keep an eye on. And we’ll give you guys updates as those developers.

Susan B. (0:04:18) – Okay, next would be CPAP and Uber cases. What are you hearing and what’s the latest on those cases?

Joe F. (0:04:25) – Yeah, CPAP seems like the liability picture is pretty strong there with the recall going on. Be mindful. We’re coming up here on the three year recall date, so the statute of limitations in those three year states want to get your cases on the registry, but the main development is we’re hearing from leadership on the type of cases they’re going to be supporting and the type of cases they aren’t. So some of the cases that are going to be in are going to be these mouth, nose, throat, lung type of cancer. So anywhere that you could breathe and there could be some sort of chemicals or particles going into your body through that, I’m hearing that the cases that aren’t going to be supported by leadership are going to be some of our more common cancers like breast, bladder, prostate. Those cancers seem to not be included. And other injuries that are going to be supported are these respiratory injury cases where we see new or enhanced asthma. Those should be supported. So plaintiffs are due to submit their expert reports here in about two months. After that time, defense are going to submit their support, their experts, and then we’re expecting there’s going to be a Daubert hearing in the beginning of 2025. So we’ll know by this time next year which type of cancers are alive, which other injuries are alive and have a better picture on the bellwether cases, but still viable cases out there. Just be mindful of the SOL and really focus on those injuries I talked about there. The other litigation update we have is in the Uber MDL. So these are the sex abuse, sex assault cases rather, that are ongoing. A couple hundred cases out there in the MDL. And recently the judge entered two really important orders. One relates to the short form complaint. So the short form complaint is a condensed filing that the plaintiff can do to start their litigation, where they incorporate the allegations in the master long form complaint. And then the other thing was the plaintiff fact sheet. So the plaintiff fact sheet or plaintiff profile form is a questionnaire that the plaintiff has to complete after they file their case. Depending upon when the case is filed, they either have 60 or 30 days to get it submitted from the information in those plaintiff fact sheets. That’s when we’re ultimately going to choose from some of the bellwether cases. So good to see that litigation Uber is picking up steam here, and we’ll have some more developments throughout the year.

Susan B. (0:06:43) – Perfect. Awesome. Well, Joe is always so grateful for your time and providing these updates and insight to each of the litigations. Next week, we’ll be doing this live in Vegas. So if there’s anyone listening that would be interested in meeting with Joe or myself or being part of the discussion next week when we record, please let me know and I will help to coordinate the recording and the meeting. So anyway, Joe, as always, thank you so much for your time.

Joe F. (0:07:08) – Yeah, thanks again, Susan. Excited to see you and everybody next week.

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