Trial Traditional Media Monitoring Report

Legal Trades

1. J&J, Bard Trial Settlements Show Mesh MDL's Growing Pains

   Mar 12, 2015 | Law360.com

   By Sindhu Sundar
   
   
   Johnson & Johnson's recent move to settle a Prolift mesh suit midtrial is the latest settlement in the handful of cases selected for trial so far in the massive multidistrict mesh litigation, but experts say such deals by J&J and fellow defendant C.R. Bard Inc. are signs of a relatively young MDL’s growing pains rather than harbingers of any larger settlements.

Legal Trades

1. J&J, Bard Trial Settlements Show Mesh MDL's Growing Pains

   Mar 12, 2015 | Law360.com

   By Sindhu Sundar

    Johnson & Johnson's recent move to settle a Prolift mesh suit midtrial is the latest settlement in the handful of cases selected for trial so far in the massive multidistrict mesh litigation, but experts say such deals by J&J and fellow defendant C.R. Bard Inc. are signs of a relatively young MDL’s growing pains rather than harbingers of any larger settlements.
   
   J&J unit Ethicon Inc. settled the case by plaintiff Dianne M. Bellew this month, five days into a trial over its Prolift device. This settlement was announced the day after Ethicon was hit with a $5.7 million verdict in California state court in a trial that involved a TVT Abbrevo pelvic mesh device. However, attorneys involved in the litigation did not comment on the reason for the decision.
   
   The MDL over mesh devices, which has been going on for about four years in West Virginia federal court, involves defendants including Boston Scientific Corp., Bard and Ethicon and tens of thousands of cases. But only about nine cases so far have been selected for trial, and many of them have settled before the trial could begin. In February, Bard indicated its plans to settle a case by plaintiff Debra Wise right before a trial over its Avaulta Plus devices was set to begin, according to court documents.
   
   Attorneys say it's not uncommon for cases to settle before trial, as the prospect of a trial forces both parties to confront the strength of their planned arguments and assess whether a deal might not be a safer option. Sometimes the individual settlement of certain cases can portend a larger “inventory settlement,” where a company uses one settlement with a plaintiffs' attorney to pave the way for resolution of the entire inventory of cases filed by that attorney.
   
   But that dynamic is not necessarily in play here, observers say. In the mesh litigation, the parties had some say in the selection of trial cases, but U.S. District Judge Joseph Goodwin made the final call. So, attorneys say, it could simply be that neither the plaintiffs nor the defendants were eager to try many of the particular cases selected — meaning that others may still be headed for trial.
   
   “It may take a few more selections before they find one that both sides believe they can win,” said Peter Goss of Blackwell Burke PA. “[Or] the cases that get tried are the ones where both sides feel they have a more or less even chance of winning or losing.”
   
   Ethicon’s decision to settle its case in the middle of the trial is a bit unusual but not wholly unexpected, given that often in litigation, teams of lawyers can simultaneously be engaged in settlement talks even while a separate set of attorneys is trying the case, attorneys say.
   
   “There are many variables as to why companies settle litigation such as this, and the timing of such settlements,” said Alan Klein of Duane Morris LLP.
   
   “Those variables include the bench strength of one’s adversary ... the composition of the empaneled or prospective jury, available insurance coverage and carrier demands and preferences, the company’s defenses, and its prior knowledge of the risks from the implanted pelvic mesh product,” he said.
   
   Even in these early bellwether cases, defendants do face some pressure to settle, attorneys say. Plaintiffs' attorneys in the cases note that more than half the cases that have gone to trial since 2014, including those in state court, have resulted in plaintiff verdicts, a factor that defendants may consider when crafting their litigation strategy.
   
   In addition, Judge Goodwin made some controversial remarks in December indicating he thought Bard should settle the mesh cases in light of its potential liability in the litigation. Federal judges often nudge the parties toward settling, so Judge Goodwin’s personal stance on Bard’s odds is not surprising, attorneys say. But the fact that his remarks were public are unusual and could pressure Bard to settle some cases, attorneys say.
   
   “It can have some influence on your decision-making, but you'd never settle a large group of cases simply because of comments by the judge,” Goss said. “The hope would be that if you get a bad outcome in a trial based on a judge's comments, you could take that on appeal.”
   
   Bard was hit earlier with a $2 million verdict in the MDL in August 2013, in a case brought by plaintiffs Donna and Dan Cisson, according to court documents.
   
   Before trial in Bellew's case, Ethicon had faced at least two mesh trials in the MDL: Lewis v. Ethicon, the first bellwether against it, in which it won a directed verdict in February 2014, and Huskey et al. v. Ethicon, in which the plaintiff won a $3.3 million verdict.
   
   So far, no trials are scheduled in the Bard litigation, while one trial in the Ethicon litigation is expected to take place in July, according to court documents. Judge Goodwin is expected to schedule more trials in the coming weeks.
   

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