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Dangerous Drugs & Medical Devices News & Commentary on Prescription Drug & Medical Device Lawsuits

Vaginal Mesh Cases and Neutered Sheep – What’s the Connection?

Posted in Vaginal Mesh

Right now, thousands of vaginal mesh lawsuits are pending in the U.S. District Court for the Southern District of West Virginia. Just as the criminal justice system would collapse if every criminal case went to trial, so too would our civil justice system collapse if every vaginal mesh case went to trial. The vaginal mesh cases are all grouped together in what is called an MDL, which stands for “Multi-District Litigation.” An MDL is used when there are a variety of similar lawsuits filed in different federal court districts across the country. (There are 94 federal districts.)

There are several purposes of an MDL, but one of the most practical is to facilitate settlement of the hundreds or thousands of cases that are part of the MDL.  An MDL facilitates settlements through a series of special trials.  In a nutshell, the court picks a handful of cases to be tried.  The results of those trials then give both sides some idea of what juries are likely to do with any given case.  The parties can then decide upon terms of a mass settlement based upon the results of those trials.

The cases that the judge pick for trial have a special name: “Bellwether cases.”  You might guess that “Bellwether” is some fancy Latin term.  It actually is a fancy farming term.  In the vaginal mesh MDL, one of the mesh manufacturers filed a memorandum that explains the history of the term Bellwether:

[T]he etymology of the word “bellwether” refers to a neutered ram (a wether) with a large bell around its neck, responsible for keeping a flock of sheep together. In Judge Kramer’s words, the bellwether helps the flock “stay in line and follow him, so that there are no stragglers off doing their own thing, and they all go home together at the end of the day.” Judge Kramer drew the analogy to a bellwether case, adding that like the ram, it is very important that a bellwether case is not a “sexy” case – in other words, that it has no facts that would make it an outlier case or make it more favorable for one side or the other. He continued with the analogy, saying it was also important that the “other sheep don’t know that the wether isn’t sexy anymore” so that they continue to follow him and stay “with the flock” and so they can all “go home at the same time.”

The vaginal mesh manufacturer filed the memorandum because it does not want some of the proposed cases to be used as bellwethers.  The manufacturer argues that several of the cases are too “sexy.”  Sexy in this case of course means that the cases might lead to large jury verdicts against the manufacturer.

While the memorandum does a good job in arguing that all bellwether cases should be “run of the mill” and not extraordinary, that’s not really what the manufacturer would prefer.  Both sides want bellwether cases to be better than average, so the resulting jury verdicts can be used to negotiate a favorable settlement.  Politely worded motions aside, we do have an adversarial civil justice system.

I’ve attached the entire vaginal mesh lawsuit memorandum if you’d like to read it.  Since it contains a great deal of personal information, I’ve gone ahead and redacted the names of the proposed bellwether picks.