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Class Action Defense Cases-In re Kugel Mesh: Judicial Panel On Multidistrict Litigation (MDL) Rejects Defense Opposition To Centralization Of Class Action Lawsuits And Selects District of Rhode Island As Transferee Court

Judicial Panel Grants Plaintiffs’ Requests, Opposed by Defense and Other Plaintiff Lawyers, for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 and Sends Class Actions to District of Rhode Island

Thirteen (13) class action lawsuits were filed in 13 different courts located in 11 different states against various defendants, including C.R. Bard and its wholly-owned subsidiary Davol (common defendants in all class actions) and Surgical Sense and WCO Medical Products (defendants in only one class action), asserting products liability claims allegedly caused by defects in various models of hernia patches manufactured and sold by Bard, Davol or Surgical Sense. In re Kugel Mesh Hernia Patch Products Liab. Litig., ___ F.Supp.2d ___, 2007 WL 1853819, *1 (Jud.Pan.Mult.Lit. June 22, 2007). Plaintiffs’ lawyers in the Alabama and Rhode Island actions moved the Judicial Panel for Multidistrict Litigation (MDL) an order centralizing the class actions for pretrial purposes pursuant to 28 U.S.C. § 1407, each requesting transfer to the district court in which their action already was pending, id. The Tennessee plaintiffs opposed pretrial coordination entirely, while the Arkansas plaintiffs supported centralization only as to those class actions that contained certain claims but otherwise opposed centralization, id. All defense attorneys opposed centralization, alternatively arguing for transfer to Arkansas or Missouri, id. Other plaintiffs in various districts supported transfer to various districts and under various circumstances, providing the Judicial Panel with no consensus from which to work, id. The Judicial Panel granted the motion to centralize the class actions over the objection of defense and certain plaintiff lawyers, finding that “all actions involve common questions of fact” in that they “share factual questions concerning such matters as the design, manufacture, safety, testing, marketing and performance” of hernia patches manufacture and sold by Bard, Davol and Surgical Sense, id.

The Judicial Panel summarized defense arguments in opposition to centralization of the class action lawsuits as follows: “common facts do not predominate among the actions, as the actions involve different models of hernia patches and allege various types of defects; the number of pending actions does not warrant centralization; alternatives to centralization are available; and the pending actions differ substantially in the causes of action pleaded, and thus the evidence required. Additionally, the parties to the Western District of Arkansas action argue that the hernia patch at issue in that action was manufactured and distributed by a different, unrelated company. Plaintiffs to the Arkansas actions argue that two types of actions should not be included in MDL-1842 proceedings: (1) those actions that do not allege that the recoil ring is defective; and (2) those actions that arise from a procedure, or the installation of a hernia patch, that may create a higher risk of infection in the patient.” In re Kugel Mesh, at *2. The Panel rejected these arguments, explaining that “Section 1407 does not require a complete identity or even a majority of common factual or legal issues as a prerequisite to transfer.” Id. The Panel further explained at *2,

Transfer under Section 1407 has the salutary effect of placing all actions in this docket before a single judge who can formulate a pretrial program that: (1) allows discovery with respect to any non-common issues to proceed concurrently with discovery on common issues…; and (2) ensures that pretrial proceedings will be conducted in a manner leading to the just and expeditious resolution of all actions to the overall benefit of the parties. The MDL-1842 transferee court can employ any number of pretrial techniques–such as establishing separate discovery and/or motion tracks–to efficiently manage this litigation. In any event, we leave the extent and manner of coordination or consolidation of these actions to the discretion of the transferee court…. It may be, on further refinement of the issues and close scrutiny by the transferee judge, that some claims or actions can be remanded to their transferor districts for trial in advance of the other actions in the transferee district. But we are unwilling, on the basis of the record before us, to make such a determination at this time. Should the transferee judge deem remand of any claims or actions appropriate, procedures are available whereby this may be accomplished with a minimum of delay…. We are confident in the transferee judge’s ability to streamline pretrial proceedings in all actions, while concomitantly directing the appropriate resolution of all claims. (Citations omitted.)

The Judicial Panel concluded that “any of the suggested districts could be an appropriate transferee forum,” but selected the District of Rhode Island, where Davol is headquartered, finding that “centralization under Section 1407 in the District of Rhode Island will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” In re Kugel Mesh, at *2. Accordingly, the Panel assigned the various class actions, including tag-along cases, to the Honorable Mary H. Lisi for coordinated or consolidated pretrial proceedings,” id., at *3.

Download PDF file of In re Kugel Mesh Transfer Order