Power Morcellator Lawsuits Certified Into MDL

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The JPML ruled that the lawsuits included in the motion to transfer filed before the panel concerning the allegedly cancer spreading power morcellators be transferred into multidistrict litigation.

Thursday, October 22, 2015 - More than 20 actions focusing on the harmful side effects stemming from the use of power morcellators were consolidated into multidistrict litigation on October 15. The Judicial Panel on Multidistrict Litigation (JPML) transferred the MDl to the District of Kansas federal court where they will be heard before U.S. District Judge Kathryn H. Vratil.

The power morcellator lawsuits take aim at the medical device used to remove small tissues from a woman‘s uterus during surgical procedures in the area. Plaintiffs have claimed that power morcellators, while primarily used to remove small uterine tissues, can also lead to a significant spread of cancerous cells if any exist in a woman‘s uterus. The medical devices are used in a range of uterine surgeries including hysterectomies, however their propensity for agitating dormant cancer cells has caused many manufacturers to discontinue their production of the product.

Plaintiffs allege that power morcellator manufacturer Ethicon failed to warn patients of the risks involved with their product, even though the FDA had reservations about its use. The FDA had communicated with Ethicon advising them not to use the power morcellators for uterine surgeries because of the cancer risk. The use of morcellators allegedly spread cells throughout the uterus when employed for surgeries. The cancerous cells would then also spread and in many cases developed into debilitating and sometimes fatal uterine cancers.

Plaintiffs also claim that power morcellators are especially dangerous because the cancer cells that they agitate and spread can be very hard to diagnose in a timeframe that would allow for effective treatments. Dozens of women have already claimed to have contracted uterine cancer as a result of having procedures performed with a power morcellator.

The main defendant named in the multidistrict litigation is Ethicon, a subsidiary of Johnson & Johnson. Ethicon originally argued that the facts specific to individual lawsuits would overwhelm the common questions of fact present among the actions up for consolidation. The opponents of consolidation on the defense‘s side also argued that the number of actions filing for a transfer order did not necessitate class certification. They argued that even though many MDLs start with a low number of initial suits, the number of actions related to power morcellators is likely not rise dramatically.

Johnson & Johnson has halted the manufacturing of any additional power morcellators in response to the FDA‘s warning regarding the device. The FDA‘s warning stated that roughly 1 in 350 women carried dormant cancer cells in their uterus that could possibly be spread after coming into contact with a power morcellator. This warning greatly lessened the use of power morcellators in uterus procedures, and also was a catalyst for the lawsuits that eventually became consolidated in this MDL.

The JPML decided not to include in the MDL any actions that did not name Ethicon as the main defendant. In the eyes on the panel, only the actions that named Ethicon as the main defendant held enough in common to be considered closely related enough to warrant consolidation before a single federal judge in multidistrict litigation.