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Court Recognizes Need to Preserve Mesh Evidence for Trial

Court Recognizes Need to Preserve Mesh Evidence for Trial

June 25, 2018 Defective Devices 0 Comments

surgical mesh

In the ongoing Ethicon Physiomesh hernia mesh litigation in Georgia, the court has entered an order directing that surgical evidence including mesh material and plaintiff tissue be saved for lawsuit purposes. The May 28, 2018, order can affect hundreds of plaintiffs with pending claims against Ethicon in the litigation.

Duty to preserve evidence in hernia mesh litigation

Even without a court order, both before and during lawsuits, parties generally have the duty to preserve items or documents that reasonably could be used as evidence. What makes this type of order different is that it affects non-parties.

When Ethicon claimants have vaginal mesh material removed, the hospitals are not typically parties to the case and they follow their own procedures on discarding medical waste. However, the Georgia Ethicon multi district litigation (or “MDL”) order allows lawsuit participants to direct the hospital to preserve related materials as evidence.

This is not the first time a court has ordered the preservation of mesh evidence. For example, in 2014, the West Virginia Ethicon MDL over transvaginal mesh injuries, Judge Joseph Goodwin ordered that tissues and other surgical materials including anything purported to be mesh or bodily tissue excised from the site. The order instructs hospitals to refrain from destroying the materials and instead to turn it over for preservation as evidence.

MDL orders affect Louisiana mesh plaintiffs

Hernia mesh lawsuits follow the pattern that many dangerous drug lawsuits follow. Rather than be litigated as class-action lawsuits, where one class representative litigates the case on behalf of the rest of the class of affected individuals, individual lawsuits are combined in multi-district litigation, or MDL.

In MDL, cases from across the country can be transferred to another jurisdiction for administration. So an order in the Georgia MDL can be binding on Louisiana plaintiffs who file mesh lawsuits that have been assigned to that MDL.

Thousands of hernia mesh lawsuits are ongoing

Over 3,000 hernia mesh lawsuits have been across the country filed alleging physical problems like adhesions, infection, pain, fever, intestinal blockage, and mesh migration. More than 1,300 of the lawsuits have been combined in MDL and are still early in the litigation process. The first hernia mesh MDL lawsuits are expected to go to trial in 2019.

Help for mesh victims in Louisiana

Unfortunately, when it comes to defective medical products, the injuries are often not immediately apparent but laws limit how long those who are injured have to file a lawsuit. If you believe you have experienced complications because of a pelvic mesh implant, there is no time to waste but we are here to help.

Attorney Bart Bernard is committed to helping people in Louisiana by holding dangerous medical device manufacturers accountable. Call today to schedule a consultation in Lafayette or Baton Rouge to discuss whether filing a hernia mesh lawsuit is right for you.

Additional hernia mesh lawsuit resources:

  1. United States District Court for the Northern District of Georgia, In RE: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation, http://www.gand.uscourts.gov/17md2782
  2. United States District Court for the Southern District of West Virginia, MDL 2327 Ethicon, Inc., Pelvic Repair System Products Liability Litigation, https://www.wvsd.uscourts.gov/MDL/ethicon/orders.html


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