Jury rules for defense in first hernia patch trial

But plaintiffs cite ruling on negligent design

A hernia patch manufactured by Davol did not cause a California man’s severe bowel injuries, a Rhode Island jury has found.

The verdict was the result of the first trial in massive litigation claiming that the Kugel mesh patches were defectively designed.

The patches, which are used for hernia repair, contained a plastic ring that could buckle or break off inside patients and cause the mesh to ball up or migrate, leading to perforation, infections and bowel injuries, the suits allege.

The product was recalled from 2005 through 2007. Davol – a Rhode Island division of New Jersey-based C.R. Bard – now uses a bio-absorbable ring instead of a plastic one.

About 2,500 lawsuits are pending in state and federal court in Providence. Suits filed in federal court have been consolidated in multi-district litigation in U.S. District Court for the District of Rhode Island.

The suits claim that the ring either breaks and pierces the bowel or causes the patch to ball up or flip over so the sticky side adheres to the bowel or other organs.

Injuries include ruptures, infections and blockages of the bowel, as well as death in some cases, the suits allege.

Small intestines exposed

Plaintiff John Whitfield had an oval, composite Kugel hernia patch implanted in 2004 while he was a resident of Missouri.

The patch buckled, exposing his small intestines to the mesh side of the patch. A section of Whitfield’s bowels had to be removed, along with the device, in 2007.

A jury of six women and three men deliberated for two days following a two-week trial before ruling in April that although the patch was negligently designed, it did not cause Whitfield’s injuries.

“We were happy that the jury decided on the science, medicine and the facts of the case,” said lead defense counsel Michael K. Brown, a partner at Reed Smith in Los Angeles.

But Donald Migliori, lead plaintiff’s trial counsel, said the verdict also represented a victory for plaintiffs in the hernia patch litigation.

“We lost the medical causation issue for Mr. Whitfield, but we won something we’ve been fighting for over three years – that the product was negligently designed. … Their product is defective,” said Migliori, who practices at Motley Rice in Providence.

Brown said, however, that “the composite Kugel remains an important medical device in treating hernias. We certainly understand there are more cases to come. We’re going to look at each case individually and on its facts.”

Opening arguments in the second trial are slated for June 15 in U.S. District Court in Providence. The case involves a suit filed by Christopher Thorpe, of North Carolina, who suffered an abdominal wall abscess and fistula that he claims was caused by a broken Kugel patch ring.

Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com