Pelvic mesh litigation now comprises over 60,000 cases in the federal MDL, proceeding in the Southern District of West Virginia, and notable developments in the MDL and in cases proceeding in state and federal courts continue as cases prepare for bellwether trials.
Judge Goodwin issued a fascinating opinion on the application of the learned intermediary doctrine under West Virginia law (In Tyree v. Boston Scientific Corp, Civ. No. 2:12-cv-08633, a member case in In Re Boston Scientific Corp. Pelvic Repair System Products Liability Litigation, MDL 2326, Southern District of West Virginia, Charleston Division) , finding that the protections of this doctrine only apply to drug manufacturers who do not engaged in any direct to consumer (“DTC”) advertising.
In the pelvic mesh litigation, there is a clear distinction between a drug manufacturer who appeals directly to the consumer and a medical device manufacturer who markets to medical professionals. However, with the ubiquitous presence of advertisements, television commercials, attractive websites, and a consistent and burgeoning flow of information, it would seem that any clear line will only continue to erode. The learned intermediary doctrine may yet persist, but it’s long-term prognosis remains unsure.
Plaintiffs in a recent Boston Scientific pelvic mesh bellwether trial won substantial jury verdicts. The trial was held in the Southern District of Florida, Miami Division, and the Eghnayem v. Boston Scientific Corporation verdicts, in favor of four Plaintiffs, totaled $26.7 million. The court’s memorandum opinion and order on Boston Scientific’s partial motion for summary judgment on Plaintiff’s punitive damages claim is worth a read, addressing some of the choice of law issues that arise in many mass torts cases.