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Physiomesh (Hernia Mesh) Class Action

Murphy Battista LLP is contributing its medical malpractice and personal injury expertise in collaboration with Vancouver class action law firm RK Litigation, to assist people affected by this proposed class action. Click to learn about RK Litigation’s role.

Physiomesh (Hernia Mesh) Class Action Procedural History

On June 1, 2017, we filed an action against Ethicon (a Johnson & Johnson company) regarding an individual patient who suffered complications as a result of a failed Physiomesh product manufactured by Ethicon. A case management judge has been assigned to oversee the proposed class action.

We are hoping to be in a position to seek certification in early 2019. At that time, the Court will decide whether the individual action may proceed as a class action.

The Class and the Defendants:

At the time of certification, there must be an “identifiable class of two or more persons that would be represented by the representative plaintiff…” The purpose of identifying the class it to identify people who have a potential claim against the defendant, define the parameters of the lawsuit in order to identify those people who will be bound by the result of the action, and describe who is entitled to notice of the class proceeding.

At this time, the action and the proposed class action are only against Ethicon and its related companies.  Specifically, the defendants include the following:

  • Ethicon Inc.
  • Johnson & Johnson Inc.
  • Johnson & Johnson Medical Companies
  • Johnson & Johnson
  • Johnson & Johnson International

Ethicon manufactured a specific hernia mesh called the “Physiomesh”. Physiomesh was recalled in early 2017. In the lawsuit, we allege that Physiomesh is made from dangerous materials, including polypropylene, which breaks down after it has been implanted in patients. This leads to such complications as bowel obstruction, seromas, infection, hernia recurrence, and even death. These complications often result in the need for one or more corrective surgeries and result in permanent damage.

The current definition of the class only includes those who have been implanted with the Ethicon Physiomesh. It does not currently include anyone who has been implanted with different meshes from different manufacturers.  We may seek to broaden the definition so that the proposed class action is on behalf of Canadians who were implanted with other brands of hernia meshes in British Columbia and elsewhere in Canada.  We have been contacted by many individuals who received a product other than the Ethicon Physiomesh. We hope to be able to assist these individuals as well.

This matter is in its early stages and we are still in the process of gathering information about potential class members. In particular, we are attempting to compile a searchable database of class members. For that purpose, it will help us ensure that we have your information and are able to contact you with news if you could kindly complete our online form.

Click to view the Physiomesh Online Form.

It is preferable if you are able to complete and submit the form online. However, if you cannot do so, the form is also available as a .pdf here: Physiomesh PDF. You can email your completed form as an attachment to [email protected]

This case has had decent initial response. The class is typically not identified until after certification. It is normally the case that notice is given to the class, with direction from the court, following successful certification. At that time, opt out procedures are also identified so that individuals who do not wish to be part of the class can opt out and not be legally bound by the outcome.

The Likely Outcome:

Class actions are notoriously hard fought. Defendants typically have significant resources to fight every step of the way. We would not be pursuing this claim unless we were confident in both its merits and its likelihood of success. However, there are no guarantees of success.

In the event the claim is successful (meaning that we get certification and then either succeed in a common issues trial or in reaching a settlement), a claims process would be developed allowing for individual class members to be compensated for their losses.

What We Cannot Do:

By their very nature, class actions can help address wrongs affecting a large number of individuals, but they are not suited to determine individual cases. Therefore, we anticipate that this claim will deal with the dangers of the Ethicon Physiomesh and, perhaps, hernia meshes generally. This will include their inherent risks, failure to disclose these risks by manufacturers, and the marketing of these devices to individuals who were not suitable candidates.

Concerns relating to the care received from a surgeon, either during the surgery itself or the (lack of) follow-up care, are not suitable for determination in a class action because they cannot be decided on a broad basis – the issues of individual treatment are not common issues among the class.  If you are concerned about the care you received from your doctor(s) or surgeon(s) and are considering taking legal steps on that matter, we recommend that you seek legal advice from a medical malpractice lawyer in your province. Our firm has extensive experience advising and representing people who have been injured due to medical malpractice. Click to learn more about how we can help you with medical malpractice claims.

Limitation Periods:

The “limitation period” is the period of time in which a lawsuit must be filed.  If a lawsuit is not filed within the applicable limitation period, it may be barred from proceeding.

Limitation periods for individual claims will vary.

There is a general two year limitation period that applies to personal injury lawsuits.  In other words, people must file a lawsuit within two years from the date of the incident, or two years from the date they discover or reasonably ought to have discovered that they suffered some harm at the hands of someone else.  If a lawsuit is not brought before the expiry of that two year period, then their claim is barred.

There is an exception to the general rule in class actions.  Once a class action is filed, any limitation periods that may apply to other claims that have not yet expired are essentially put on hold.  In other words, to the extent a claim falls within this class proceeding and the limitation period did not expire before we filed the claim, the filing of the action will suspend the running of the limitation period until a member opts out of the proceeding, the claim is dismissed, or the class proceeding is settled.

On the other hand, limitation periods that have expired before filing the class action may not be put on hold. In other words, if the limitation period applicable to your claim expired before we filed the class action, then your claim may be barred. This issue will be determined on a case by case basis.

We are not able to provide assurances with respect the limitation period applicable to individual claims at this time. That is particularly true with claims against other manufacturers that are not presently named defendants in this proceeding. Should you have any concerns about the limitation period applicable to your claim, we recommend that you consult a lawyer in your jurisdiction (or the jurisdiction where the mesh was inserted).

Next Steps:

One of the keys to determining whether you may become a member of the class is identifying the type of mesh that was used in your surgery.  You can find that information in the medical records from the hospital where the surgery took place.  You will need to contact the records department and request a copy of the hospital records.  If you have had multiple visits at that hospital, the records could be quite voluminous so, for starters, you may only want to ask for the records relating to the hernia surgery.  Please make sure your request includes a request for a copy of the nursing notes from the date of the operation since they often include a sticker that shows the model number of the mesh that was used in the surgery.

Conclusion:

We are bringing this action because we believe that considerable harm has been done to individuals who were harmed by a medical device that had unacceptable complication rates.  We believe that a class action is the appropriate method of proceeding because of the various issues that are common to hundreds or perhaps even thousands of people who have been similarly harmed. Further, given the nature of medical device litigation, it would be uneconomical for the vast majority of those claims to be pursued on an individual basis.

It is our hope and expectation that we will be able to assist Canadians harmed by hernia meshes. It will be a lengthy process and we are not able to offer any guarantees at this time. While we are happy to discuss the nature of the class proceeding with any potential class members, our ability to answer questions related to the specifics of individual claims is limited.

At this time, we ask that you kindly complete the form noted above.  If you have any questions, please direct them to [email protected], an email account set up and monitored to specifically deal with these claims.

We sincerely hope we are able to help you.

Additional Information

What is a Class Action?

A class action is a lawsuit where two or more claimants with common grievances against a particular defendant or defendants bring their claims together in one lawsuit. It can be a useful vehicle to right wrongs in which many individuals have been harmed by wrongdoing or negligence in situations where it would not be economically viable to pursue each instance as an individual claim.

For example, most people have heard about wrongdoing by Volkswagen that involved fraudulent claims of low emissions on their diesel vehicles. For each individual VW owner, it would not have been financially viable to pursue a claim against VW because the cost of doing so would be prohibitive.  Instead of individual claims, class actions were brought in various countries and ultimately settlements were reached. As is often the case in a class action, the settlement involved the establishment of a process by which affected individuals could submit claims for their losses and have their losses paid pursuant to the terms of the settlement. It is not a perfect system but it does allow for wrongdoing, especially corporate wrongdoing affecting large numbers of individuals, to be addressed efficiently.

Class Actions are Intended to:

  • Promote access to justice by making it feasible for a group of claimants who have suffered a common wrong to have their claims heard;
  • Promote behavior modification by serving a quasi-regulatory function, encouraging good practices particularly on the part of large-scale manufacturers and deterring harmful practices; and
  • Promote judicial economy by bringing what could otherwise be tens, hundreds, or even thousands of claims in one action that can be decided in one trial with one judge.

Unlike a typical lawsuit in which the individual plaintiff can be liable for significant costs in the event their case is unsuccessful, a class member does not have any exposure to costs. As such, there is no risk to an individual class member in the event the action is unsuccessful.