Photo of Stephen McConnell

If the concept behind Multidistrict Litigations is centralized, efficient management of common issues in large numbers of lawsuits, with remand of trial-ready cases, then MDLs are less than successful on those grounds, and certainly not successful enough to justify the asymmetric discovery and bad rulings (or nonrulings) that come as part and parcel of the MDL settlement meat-grinder. In the vaginal mesh litigation, for example, we have seen a vast variety of inconsistent rulings by remand courts, some necessary to circumvent errors authored in the centralized proceedings.

Consider Terry v. Ethicon, Inc., 2022 WL 468051 (W.D. Ky. Feb. 15, 2022), a case with a bizarre procedural posture and a mixed bag of rulings. The mesh patient’s husband was the sole remaining plaintiff due to the wife-plaintiff being estopped by her failure to list the claim as an asset in her bankruptcy (bankruptcy estoppel is a procedural pitfall that happens more than you might think, and we’ve blogged about it). Consequently, the claims left in the Terry case stemmed from the husband-plaintiff’s allegations of loss of consortium. (Note that “stemmed from” is not quite the same as saying the claims all were for loss of consortium. You’ll discover the difference soon.) It seems a bit odd that under Kentucky state law a consortium claim can survive a non-merits dismissal of the spouse’s claim even though it is factually derivative. But there it is.

The defendant moved for summary judgment on the plaintiff-husband’s claims for failure to warn, design defect, violations of the Kentucky Consumer Protection Act (KCPA), unjust enrichment, and for his own personal injuries. We’ll deal with that last category first.

Most of the husband’s claimed damages in the Terry case were for his own purported injuries (such as erectile dysfunction), which the decision holds are not something that constitute consortium. The problem for the husband (we mean legal problem; we’re not getting into the others) was that he had not “produced medical proof linking his medical maladies to his wife’s injuries.” Bye bye personal injury claims.

Thus, all that are left in the Terry case are the true consortium claims. Right away, that fact had two important implications: first, a consortium claim is a legal claim and cannot support an equitable claim for unjust enrichment; second, under Kentucky law a consortium claim alone cannot support punitive damages. The Terry case got considerably smaller.

Because proof of the husband’s derivative consortium claim would require proof of the wife’s underlying product liability claim, there are some rulings on the issues in Terry we typically see in pelvic mesh cases. The key ruling on the failure to warn claim is quite good in Terry. The court held that the failure to warn claim failed under the learned intermediary doctrine because the prescriber already knew the relevant risks and would do nothing different today. The plaintiff wanted to focus on whether the warning was adequate, but the evidence (via some very good deposition testimony by the implanting physician) showed lack of proximate cause. There was simply no proof that a different warning would have made any difference. So much for the failure to warn claim.

Now we get to the design defect claim. The central issue was the testimony of the plaintiff’s medical expert. Here, the Terry court’s rulings disappoint, though they do not entirely surprise. The plaintiff’s medical expert is someone whom mesh defendants have seen before — many times. The ruling in Terry on this expert pretty much follows the MDL rulings. That is not entirely a good thing. Very little gatekeeping took place. In Terry, the expert was permitted to testify about an alternative mesh product (that he also claims is defective, although supposedly less so) in support of the design defect claim. That alternative product was never cleared by FDA for the indication at issue and had far less testing to support its efficacy than the testing for the defendant’s product actually used in the case – and the plaintiff claimed that the testing for the defendant’s product was inadequate. Huh? How do the plaintiff and plaintiff’s expert get to talk out of both sides of their mouths? The court says tell it to the jury. Of course, we do not know whether the defendant will be allowed to tell the jury that the FDA never cleared the proposed alternative product for the proposed use, because hovering over the pelvic mesh litigation mess is the MDL court’s extremely unfortunate decision that FDA clearance is irrelevant and prejudicial. Or perhaps this case is another example of why the exclusion of FDA clearance is so unfair and unworkable. We’ve seen at least one other court cut back on the MDL’s misguided ruling for precisely that reason.

In any event, there are other opinions out there that really did clamp down on this same plaintiff pelvic mesh expert. The lesson for practitioners is to grab hold of all the Rule 702 opinions on an expert. In this case, if you just plug the expert’s name into a search, you’ll come up with a moveable feast. Then it comes down to arguing to your court which opinions are closest or smartest. Good luck. If you expect consistency, you haven’t been paying attention,

The Terry opinion is plenty smart regarding the husband’s fraud claim under the Kentucky Consumer Protection Act (KCPA). Kentucky authority says that privity of contract is required in a private right of action under the KCPA. Such privity did not exist here – definitely not for the husband, and not really for the patient, either. Medical devices used by physicians during surgery are “not household devices under consumer protection laws.”

The result of these rulings is that, while the Terry case still exists, there isn’t a whole lot left to go to the jury. There is a design defect claim that rests very much on the testimony of an expert who brings with him into the courtroom ample fodder for cross-examination.