Health Law Daily Wrap Up, PRODUCTS LIABILITY (DEVICES)—S.D. Ohio: Motions in limine granted in part in third polypropylene hernia mesh products bellwether, (Oct 13, 2023)

By Patricia K. Ruiz, J.D.

The court held the patient could not introduce evidence of injuries not connected to the patient’s theory of injury or the injuries themselves.

In a third bellwether case in a multidistrict litigation (MDL) regarding polypropylene hernia mesh products, the U.S. District Court for the Southern District of Ohio granted in part and denied in part motions in limine by the manufacturers of the products. The court relied on its rulings in previous bellwether cases in the MDL to exclude evidence of injuries not connected to the patient’s theory of injury or the injuries themselves and to allow the patient to testify as a layperson to his weight gain, depression, and anxiety, but prohibit argument of medical causation as it relates to his urinary issues and sexual dysfunction (In Re: Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, (Stinson v. Davol Inc.) October 3, 2023, Sargus, E.).

Third bellwether case. The patient filed suit against Davol, Inc., and C.R. Bard, Inc., to recover for injuries sustained as a result of the implantation of an Extra-Large PerFix Plug hernia mesh device, alleging the manufacturers knew of the risks presented by the device but marketed and sold it despite the risks and without appropriate warnings. Following summary judgment, the following claims remained for trial: design defect, failure to warn, negligence, breach of express warranty, and breach of implied warranty. The court addressed the motion in limine in the context of the first two bellwether trials in the MDL.

Previous bellwether cases. In the first trial, the court granted the manufacturers’ motion with regard to cancer and fear of future conditions because the only alleged injury remaining in the case was adhesions (see MDL court resolves evidentiary motions in bellwether hernia mesh trial, December 8, 2020). In the second, the court allowed the plaintiff to introduce evidence of ring breaks in the Composix Kugel because of its similar design or risk profile to the Ventralex, the device at issue in the case. The court also allowed evidence of polypropylene degradation because the plaintiff had presented admissible expert testimony about polypropylene degradation and its relevance to that case (see Court screens expert opinions for second polypropylene hernia mesh bellwether trial, Oct. 26, 2021).

Motions in limine. In the instant case, the manufacturers sought to exclude evidence of alleged defects and injuries that did not occur in this case, arguing that any evidence or argument falling outside the scope of the theory of defect (excessive polypropylene) and injury (groin pain) is irrelevant and inadmissible. The manufacturers pointed specifically to a physician’s opinions regarding contraction, migration, nerve entrapment, mesh tissue stiffening, bowel obstruction, and organ fistulization and penetration. The court found it already addressed the scope of the opinions at issue in its evidentiary motions order, having excluded the opinions regarding migration, nerve entrapment, mesh tissue stiffening, bowel obstruction, and organ fistulization but allowing the physician’s opinions regarding mesh shrinkage. Additionally, the court previously found inadmissible the physician’s opinions regarding deadly complications, fatal outcomes, and death, as they lacked a connection to the patient’s theory of injury or the injuries themselves. The court found the same reasoning applied to the manufacturers’ contention that the patient should be prohibited from arguing that the manufacturers should have warned about such hypothetical complications or defects with the PerFix Plug, as these lack a connection to the patient’s theory of injury or the injuries themselves. The court granted the manufacturers’ motion in limine.

The manufacturers also asked the court to preclude the patient from presenting evidence or argument concerning claims of damages for which the patient has no support, such as bladder problems, sexual dysfunction, weight gain, worsening anxiety and depression, and disability. The manufacturers argued that many of these conditions predated the hernia surgery and that his sole medical causation expert expressly disclaimed any opinions that the PerFix Plug caused or worsened any of these purported injuries, other than the general possibility that bladder problems were caused by the PerFix Plug, though he did not claim the patient suffered from any such problems. The court concluded that, while the patient can testify as a layperson to his weight gain, depression, and anxiety, he cannot argue medical causation as it relates to his urinary issues and sexual dysfunction. Thus, the court granted the motion in limine in part and denied it in part.

The case is No. 2:18-cv-01022-EAS-KAJ.

Attorneys: Jeffrey S. Grand (Seeger Weiss LLP) and Timothy M. O'Brien (Levin, Papantonio, Thomas, Mitchell, Rafferty Proctor, P.A.) for Aaron Stinson. Eric Lawrence Alexander (Holland & Knight LLP) and Eric John Buhr (Reed Smith LLP) for Davol, Inc. and C.R. Bard, Inc.

Companies: Davol, Inc.; C.R. Bard, Inc.

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