Latest / The Jon and Marc Podcast / What’s Next for Hernia Mesh Litigation? With Kelsey Stokes & David Hobbs

Transcript

What’s Next for Hernia Mesh Litigation? With Kelsey Stokes & David Hobbs · The Jon and Marc Podcast

• 0:09
  Welcome back to Tort Talk. We are here today with
• 0:12
  incredibly special guests. We have the Kelsey Stokes and
• 0:16
  David Hobbs. We're going to talk about hernia
• 0:18
  mesh and all of the things that are happening with this
• 0:21
  litigation. Thank you so much for joining
• 0:22
  us. Thank you so much for having me
• 0:24
  for. Those of you who don't know much
• 0:26
  about hernia mesh, talking to Kelsey, talking to David like
• 0:29
  this, this is the group that's going to be able to provide all
• 0:32
  the information about the litigation, where it is right
• 0:34
  now and where it's going. So why don't we start kind of
• 0:37
  like what we were talking about right before we started rolling,
• 0:39
  There is transvaginal mesh, there's hernia mesh.
• 0:42
  Let's make sure that that everyone understands exactly
• 0:44
  what we are talking about. What litigations are still
• 0:46
  currently active? Sure.
• 0:48
  Yeah, Transvaginal mesh, to be clear, is, is a different
• 0:51
  litigation, OK. But but also it, it's important
• 0:56
  to know that all of these manufacturers developed
• 0:59
  transvaginal mesh off of already existing products in their
• 1:03
  hernia mesh line. There are significant
• 1:05
  similarities. In fact, so much so that in the
• 1:08
  Bard litigation and the Bard MDL, we had a 2 day hearing with
• 1:15
  multiple experts to actually address the topic of how hernia
• 1:19
  mesh and transvaginal mesh were related.
• 1:21
  And the judge ruled that we could bring in evidence from
• 1:24
  transvaginal mesh. That said, it's a different
• 1:26
  approach at a different location in the body, and so I don't want
• 1:30
  anybody to misconstrue these litigations as the same.
• 1:34
  Of course, the material is is very similar and they're, you
• 1:38
  know, the repair sites are in soft tissue, so the inflammatory
• 1:42
  response is similar. However, transvaginal mesh has
• 1:45
  significant implications because of the sensitive location where
• 1:51
  it's implanted. Anatomically, Yeah.
• 1:53
  And so you, you talked a little bit about barred hernia mesh.
• 1:56
  I, I think it was a a little bit more than a year ago when you
• 2:00
  first announced the great result the the global settlement.
• 2:04
  So if you could you and David maybe talk a little bit about,
• 2:07
  you know, that settlement, what's going on And I know you
• 2:10
  guys have probably been spending most of your time over the last
• 2:13
  year on that. Where are we and what should we
• 2:16
  look forward to going forward? So we did a lot of work on on
• 2:20
  the barge settlement. We announced it in I believe it
• 2:23
  was early October of 2024 and since then and, and and to be
• 2:29
  clear that settlement involves about 40,000 plaintiffs can't
• 2:34
  talk too much about the specifics obviously.
• 2:37
  But since that time plaintiffs council has done a tremendous
• 2:40
  job of getting in the the necessary data to prove up the
• 2:45
  injuries that are going to be compensated pursuant to the
• 2:50
  agreement. So what I can say is we are on
• 2:54
  schedule, everything is going very well.
• 2:58
  We are working really well with Barnes Council and I can't
• 3:01
  stress enough actually how much of a cooperative environment we
• 3:07
  have with Bard's Council on this.
• 3:09
  And so I just, I just want to give a shout out to them And
• 3:13
  also the special masters have done a tremendous job.
• 3:16
  David Hobbs over here, you know, is ministering council with me
• 3:21
  and Mike Russo and John or with Motley Rice.
• 3:24
  We have done so much work and the e-mail traffic, I mean, I
• 3:29
  mean, Hobbs, how much of your day is spent on this?
• 3:31
  Yeah. No, we, we easily spend 20 to 30
• 3:35
  to 50% of a on questions from case council, you know,
• 3:40
  questions on how, how to submit information, what type of
• 3:44
  information submit like where, what, what is the case status.
• 3:46
  And so it really is, it has been a lot and we've done a lot of
• 3:49
  training. We have to do a lot of training
• 3:51
  to make sure that when these claims get looked at, when the
• 3:54
  records get looked at, that the injuries that are covered in the
• 3:59
  settlement are actually accounted for correctly, that
• 4:02
  they're being judged correctly. And so we do.
• 4:04
  We have to do a lot of that. Very, very interesting how like,
• 4:07
  the settlement gets announced and that's not the finish.
• 4:10
  It's not even close to the finish.
• 4:12
  No, and that is such a good point.
• 4:14
  The clients need to be managed on that topic.
• 4:17
  Actually, there's the litigation which takes its own amount of
• 4:21
  time, right, Depending on the defendant, depending on how the
• 4:24
  bell others go, that can be anywhere from, you know, two
• 4:27
  years, if you're lucky to 7-8 years.
• 4:31
  But then you have, once the settlement is inked, what
• 4:34
  happens then? The administration of a
• 4:36
  settlement that involves in particular the, the volume of
• 4:40
  claimants in Bard and, and frankly, in any mass tort
• 4:44
  settlement, once that settlement is inked, that administration
• 4:47
  can take up to two to three years.
• 4:49
  And so clients need to be managed on that process and
• 4:53
  nobody is doing anything wrong. You know, I know claimants get
• 4:57
  very angry because they say you have a deal, you have a deal.
• 4:59
  Why? Why haven't received anything?
• 5:02
  Council is doing everything, meeting the deadlines, and it's
• 5:05
  just the way the process works. And I think what you guys have
• 5:09
  done with Bard is pretty remarkable.
• 5:11
  John and I and Mark are always talk about that 10,000 number of
• 5:14
  mass torts, like we think that's a big one.
• 5:17
  This is, this is about four times that.
• 5:19
  But he as part of Bard, there's about 20 different products
• 5:22
  involved and there's a number of different injuries.
• 5:24
  So, David, like how do those cases get evaluated like it's on
• 5:29
  an individual basis for each client?
• 5:32
  On an individual basis, but you have to look at the specific
• 5:34
  product and what it's done for this specific person.
• 5:38
  And because the liability theories, while there's overlap,
• 5:40
  they are different for each product.
• 5:42
  Some products have rings and so you're looking OK, am I looking
• 5:46
  for a buckled product? Am I looking for a fractured
• 5:47
  ring? What has this done?
• 5:49
  Or if you're looking at a plug case, you're looking OK, You're
• 5:53
  usually in the groin, you're in the inguinal space and you're
• 5:56
  looking what type of inflammatory process is there.
• 5:58
  There's a very different set of injuries that you'll see with
• 6:01
  each product in a very different way.
• 6:03
  Those, the defects and the design of the product will
• 6:06
  manifest themselves and so you have to look at that.
• 6:08
  And that's what makes the the administration and it's been
• 6:11
  really well done by you guys. I'm not just saying that because
• 6:14
  you're here, but as somebody on the outside from leadership that
• 6:19
  I think I have a decent number of cases being able to process
• 6:22
  them and getting them done. It's remarkable when you compare
• 6:25
  the complexity of the settlement to say, you know, a roundup
• 6:28
  where it's one signature injury that's much easier to process.
• 6:32
  I can't say enough. You know, we meet administering
• 6:35
  counsel and the special masters meet at a minimum of once a
• 6:38
  week. So Ellen Reissman, John Jackson,
• 6:41
  Adrienne Tice and Doug Shriner. Oh my gosh, Can't tell you
• 6:45
  enough how much they have helped us in guiding claimants, counsel
• 6:49
  and in establishing procedures and processes throughout this
• 6:53
  whole litigation and in the administration of the
• 6:55
  settlement. I think you.
• 6:55
  Aren't a settlement. I think we made it minimum two
• 6:57
  or three times a week, yeah. Honestly, we do.
• 7:00
  We do so that that's going well and, and everything we are on
• 7:05
  track. And so I just want everyone to
• 7:08
  know that and if they have any questions, you know, we can't
• 7:11
  really talk much more than what we have about the details, but
• 7:15
  if they, if they have any questions, please contact us and
• 7:17
  you should have our contact information.
• 7:19
  And you guys are always available and very responsive.
• 7:22
  So we appreciate that. And you know that was the big
• 7:25
  one last year that the biggest settlement, you know the hernia,
• 7:29
  biggest hernia mesh 1 to date. And so the other one that we're
• 7:32
  all kind of working on now is another manufacturer.
• 7:34
  So it's Covidien and kind of how I explain it to clients is
• 7:39
  hernia mesh it, it's like cars. There's all of these different
• 7:42
  manufacturers. There's GM, there's Ford,
• 7:44
  there's Covidien, there's Bart. And then within each
• 7:47
  manufacturer there's line of products, right?
• 7:49
  There's a Ford Mustang, there's a Ford F-150, there's a, you
• 7:53
  know, Covidien PCOX, there's a pro grip.
• 7:56
  So each one of these are so nuanced, but what we have going
• 8:00
  on in Covidien is there's kind of parallel actions like we
• 8:03
  always see in mass torts. MDL Kelsey's leading that as
• 8:07
  well and then in state court in Massachusetts.
• 8:10
  And so right now my, my firm has the first bellwether trial
• 8:14
  scheduled in January of 26th, about six weeks out.
• 8:18
  So we're really, you know, knee deep in that doing the expert
• 8:21
  motions, trying to get some of the motion eliminate filed in
• 8:25
  arguments coming up in about a month.
• 8:27
  So while we're working on that, Kelsey, what what do you guys
• 8:31
  have going on in MDL? How big is it?
• 8:33
  First of all, what's the, every time we have a, a case
• 8:36
  management conference, the judge says these just keep coming.
• 8:40
  They keep coming. They get, get, get filed every
• 8:42
  day. When is this going to stop?
• 8:43
  And, and my answer was always, well, these, these products are
• 8:46
  still on the market. These products are still
• 8:48
  injuring plaintiffs. And so it, it's, it's not going
• 8:51
  to stop. It's not going to stop until
• 8:54
  we're able to come to some sort of resolution on these.
• 8:57
  So the, the, the MDL is approaching over 3000 cases.
• 9:01
  And I, I see that as growing by the day.
• 9:04
  Our approach to the MDL versus different a little bit from the
• 9:08
  Massachusetts State court approach, which bifurcated the
• 9:11
  monofilament cases versus the multifilament cases.
• 9:14
  What we did is we're we're pursuing it all.
• 9:17
  There's multifilament and, and, and Covinian is particularly
• 9:21
  confusing because of all of the products that start with the
• 9:24
  word pariotex. So there's prior text program,
• 9:28
  there's there's prior text of optimize composite and, and what
• 9:32
  that prior text is simply their way of labeling something as
• 9:35
  polyester based versus prior teen.
• 9:38
  There's a prior teen program, there's prior teen flat mesh.
• 9:42
  And so it's a very confusing litigation for case council to
• 9:46
  know. But what we have done is we have
• 9:49
  created buckets essentially. So there's there's buckets where
• 9:53
  there is the resorbable barrier products meant for ventral
• 9:56
  hernia repair and those are meant to be placed right up
• 9:59
  against the bow. And so that coating and it's a
• 10:02
  collagen base coating. When that coating goes away,
• 10:05
  it's supposed to be there to protect the bow during this
• 10:09
  critical healing process known as reperitonealization.
• 10:12
  I know that's a mouthful, but essentially once that peritoneum
• 10:16
  is breached and placed right against the bow, there's this
• 10:19
  process of re mesothelialization, also known
• 10:23
  as reperitonealization, and that is supposed to protect the bow
• 10:26
  once that occurs. But there's this coating that's
• 10:29
  supposed to stay on there until that process is complete.
• 10:33
  Most surgeons will tell you at a minimum, at a minimum, that
• 10:37
  coating supposed to last for 30 days for various patient
• 10:40
  factors, etcetera. They want that coating to last
• 10:43
  for 30 days. Well, we throughout discovery
• 10:46
  have learned that the the science behind it and what
• 10:49
  Covidian knew was that coating actually lasted 7 days or less.
• 10:53
  And So what happens when that occurs is dense adhesions that
• 10:59
  lead to bowel obstruction necessitating bowel resections,
• 11:02
  fistulas occur, etcetera. And so that's one of the
• 11:06
  buckets. The other bucket is the pro grip
• 11:08
  or the inguinal bucket. The pro grip is a very unique
• 11:11
  product they they labeled as the self gripping mesh and it's a
• 11:15
  bunch of 1000 little micro grips that act like Velcro and those
• 11:19
  micro grips do not resorb it during the time, the duration
• 11:23
  that they actually represent that it presorbs.
• 11:25
  So they stay there for about 18 months.
• 11:27
  And during that time the amount of pain that the patient
• 11:31
  perceives because of these micro grips just hooking into these
• 11:34
  these really nerve rich structures in the groin, it's
• 11:38
  excruciating. It causes an excessive amount of
• 11:41
  fibrosis or scar tissue and that leads to pain.
• 11:45
  And then we also have just the the bare, you know, polyester
• 11:49
  base. You've got this highly
• 11:51
  inflammatory base polymer that frankly should not be used in
• 11:57
  any humans ever. Funny story is when we were
• 12:00
  doing the Bard MDL, which is a polypropylene based polymer, we
• 12:05
  always wanted, you know, you have to get that safer
• 12:07
  alternative. And we were talking to experts.
• 12:09
  We would say, OK, So what do you think about this is a safer
• 12:11
  alternative? What do you think about that?
• 12:13
  Whatever polyester base meshes would come up, they would say,
• 12:16
  Nope, no, it's criminal. We will not, we will not support
• 12:22
  that. Polyester should ever be placed
• 12:23
  in the human body. So those are our buckets.
• 12:26
  That's what we're doing. Our first case is a plaintiff
• 12:28
  picks bellwether case, which is in February.
• 12:32
  It's a symbotex case. And this patient, Oh my
• 12:35
  goodness, this, this man was severely injured.
• 12:38
  He still actually has an exposed piece of this mesh that just
• 12:41
  leaks every day. He's had multiple surgeries and,
• 12:46
  and, and this gentleman is very injured.
• 12:48
  We have a really good, really good set of experts set up.
• 12:52
  We just finished our briefing, just finished the MSJ response
• 12:57
  actually right when I landed in Vegas.
• 12:59
  I encourage anybody to go to the docket and read that MSJ
• 13:02
  response because we laid out our case for punitive damages very
• 13:07
  nicely there. Which of those 3 buckets is that
• 13:09
  case fall into? That would be the the coating,
• 13:11
  the resorbable coating that they call an adhesion barrier that's
• 13:15
  supposed to protect the bowel and it didn't.
• 13:17
  The collagen. Barrier.
• 13:19
  And that's why these cases are so complex, like the injury
• 13:22
  you're dealing with is totally different than the one I have in
• 13:25
  my case. So it's a different theory,
• 13:26
  different products. To be clear still, the
• 13:29
  underlying polymer is polyester and that is highly inflammatory
• 13:33
  and what that does to the body is is absolutely insane.
• 13:37
  It's like a ticking time bomb for anybody who has that.
• 13:39
  And we talked John before about how the these trial dates is
• 13:43
  kind of really what's going to drive the litigation.
• 13:46
  So it's, it's going to be on to this next phase.
• 13:49
  So, so we're excited to hear from Kelsey and David.
• 13:52
  You know what happens in the next 6 months or so.
• 13:54
  Like making movement in both the state state hearings as well as
• 13:59
  the the federal hearings, they could affect each other, right?
• 14:02
  Oh yeah, it's always good. And I want to be clear, it is
• 14:04
  always good to have multiple pressure points.
• 14:07
  And we have, we have Massachusetts State court and
• 14:10
  you got the monofilament, multifilament, you know,
• 14:13
  combination. Then we got the MDL and D Mass.
• 14:16
  And then we also have a little Minnesota State court action
• 14:19
  too. And so these 4 council, they're
• 14:21
  just getting hit left and right by us.
• 14:22
  And and that's that's never a bad thing.
• 14:24
  Thank you guys so much for keeping everybody up to date.
• 14:26
  What's going on with these litigations?
• 14:28
  We've got a lot of activity here going in the beginning of of
• 14:31
  2026 and hopefully we can come to like a great resolution for
• 14:34
  the plaintiffs on all of these cases.
• 14:37
  On that every day. Awesome.
• 14:38
  Thank you. Kelsey, thank you so much for
• 14:40
  having us, by the way. Absolutely.