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Monday, March 25, 2019

Bard Hernia Mesh Litigation Heads for Trial

Trial dates have now been scheduled in the C.R. Baird hernia mesh litigation pending in Rhode Island state court. The first of over 7,000 cases will be advancing in the courtroom with the first trial commencing in July 15, 2019. Thereafter, 5 cases per month will be listed for hearing. 

Hernias are a common injury in the workplace and repairing them is often considered routine. If those repairs are made with a defective product, however, the patient can suffer unexpected and potentially life-altering complications. A mesh medical-device product is frequently implanted during surgery to correct the hernia. 

In New Jersey hernia’s are compensable events in workers’ compensation claims. N.J.S.A. 34:15-12(c)(23). Notice must be given within 48 hours after the hernia becomes manifest, discoverable and apparent, and need not be reported within 48 hours after the incident that produced the hernia. Minardi v. Pacific Airmotive Corp., 43 N.J.Super. 460, 129 A.2d 51 (Co.1957). “

Where three surgical interventions were required to repair a left inguinal hernia, and where the petitioner's medical expert, as well as the petitioner, testified to complaints of pain, discomfort and restriction of movement, the burden of proof was met for an award of permanent disability. The court concluded that there are instances where hernia surgery is unsuccessful or where the surgery itself produces sequelae which render an individual permanently impaired. Schmitt v. Mayfair Supermarkets, Inc., 272 N.J.Super. 408, 640 A.2d 311 (App.Div.1994).” Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 8.4 Particular Injuries -- Hernia (Thomson-Reuters 2019). 

Ethicon voluntarily withdrew its Physiomesh hernia mesh device from the market in 2016 after studies showed that it failed at a higher rate compared to similar hernia repair products. Concerns have been raised about similar devices, including Atrium Medical Corp.’s C-QUR Mesh, Composix® Kugel® Mesh patches manufactured by C.R. Bard subsidiary Davol, and many other hernia mesh devices manufactured by C.R. Bard. 

More than 4,000 Bard cases are being litigated in Rhode Island state court, making it the epicenter of the Bard hernia mesh litigation. Motley Rice has the first, two hernia mesh trials in the country beginning in July against C.R. Bard in Rhode Island. 

Common injuries reported following the surgical implantation of the mesh include:
  • Pain
  • Recurrence
  • Adhesions
  •  E.G. Omentectomy – Neurectomy
  • N.I.E.D. Without Treatment
  • Infection
  • Bowel Obstruction
  • Abscess
  • Mesh Shrinkage
  • Nerve Damage
  • Bowel Removal
  • Fistulae
  • N.I.E.D. With Treatment
  • Bowel Perforation
  • Seroma
  • Ring Break
  • Other Organ Perforation
  • Loss of Testicle
  • Death
The Rhode Island Bard hernia litigation will be a focus of attention as the product liability actions against the manufacturers of defective hernia mesh provide yet another avenue for injured workers’ to seek additional compensation. It will also afford workers’ compensation insurance companies a route to indemnification.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  has been representing injured workers and their families who have suffered occupational accidents and illnesses.