Recent events suggest that a global settlement in the longstanding hernia mesh multidistrict litigation (MDL) is on the horizon. Most recently, the parties jointly submitted two case management orders on July 5, 2024—CMO #52 and CMO #53. In CMO #52, the parties sought the court’s approval for a stay on discovery in lawsuits pending under the MDL. In CMO #53, they sought the court’s approval for conditions on plaintiffs’ ability to opt out of a global settlement. The court has approved both orders.

While the orders themselves are not representative of a settlement between the parties, they are common filings in multidistrict litigation once a global settlement has been (or has nearly been) reached. We’ve been anticipating a global settlement in the hernia mesh MDL for some time now, and we expect to receive news of the parties’ settlement in the near future.

“While we may soon receive news of a global settlement in the hernia mesh MDL, this does not mean that the litigation against C.R. Bard and other companies is over. Plaintiffs in the MDL have the ability to opt out of any global settlement if they choose to do so, and both new and existing plaintiffs can continue to pursue claims if they are not involved in the settlement.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

These latest developments present some important considerations for plaintiffs in the hernia mesh MDL, plaintiffs who are independently pursuing lawsuits against hernia mesh manufacturers C.R. Bard and other companies for their hernia mesh implants used in their hernia repair surgery, and prospective plaintiffs who have yet to file Bard hernia mesh lawsuits. Here’s what you need to know if you fall into one of these three categories:

Deciding Whether to Participate in the Global Settlement

For patients and families who currently have claims pending against C.R. Bard in the MDL, participation in the anticipated global settlement will be optional. Multidistrict litigation is different from class action litigation in that each individual plaintiff’s claim remains separate. While global settlements in MDL typically result in plaintiffs receiving the same hernia mesh settlement amount (or plaintiffs receiving “tiered” settlement amounts based on the severity of their hernia mesh complications), plaintiffs can opt out of settling their defective hernia mesh implant claims if they do not believe that they will receive adequate compensation for their losses under the terms of the global settlement.

This raises a critical question for plaintiffs in the pending hernia mesh MDL: Should I participate in the global settlement or opt out?

Answering this question requires a clear and comprehensive understanding of a plaintiff’s present and future losses. Once the terms of the global settlement are announced, plaintiffs will need to quickly assess whether the amount they are slated to receive under the terms of the global settlement reflects just compensation under their personal circumstances related to the hernia mesh devices. If it does, then participating in the global settlement may be the best option. But, if it doesn’t, then it may be necessary to opt out—and plaintiffs who need to opt out will want to work closely with their hernia mesh lawyers to ensure that they take all of the steps required under CMO #53, any additional orders that may be forthcoming, and the global settlement agreement itself.

What It Means to Opt Out of the Global Settlement

What happens if a plaintiff who is participating in the Bard hernia mesh MDL opts out of the global settlement? Assuming the plaintiff takes all of the necessary steps to opt out correctly, the plaintiff’s hernia mesh lawsuit simply won’t settle. Instead, the plaintiff’s lawsuit will remain pending, and the plaintiff will have the option to either: (i) seek a stand-alone settlement that provides full compensation for the plaintiff’s financial and non-financial losses; or, (ii) take C.R. Bard to their own hernia mesh trial.

This means that for plaintiffs who opt out of the global settlement, a future settlement is not guaranteed. Companies are not obligated to settle claims at any time, and they only settle claims when it is in their best interests to do so.

With that said, assuming the anticipated global settlement goes through, this will be the second global settlement that C.R. Bard has entered into regarding its hernia mesh products. The company previously entered into a $184 million global settlement in 2011. C.R. Bard has also settled several cases individually; and, at this point, there is virtually no question that the hernia mesh products that are the subject of the pending MDL were defective. As a result, while a settlement is not guaranteed for plaintiffs who opt out of the global settlement, settling is still a very real possibility—provided that these plaintiffs (and their counsel) are able to continue to pursue their claims effectively and clearly establish the losses they are entitled to recover.

Given that this is the case, when should plaintiffs think about opting out of the global settlement (again, assuming that it goes through)? It won’t be possible to answer this question until we know the terms of the settlement. While the settlement will almost certainly provide full compensation to some (and perhaps many) plaintiffs, it will also almost certainly leave some plaintiffs needing to seek more.

Under the prior $184 million global settlement, plaintiffs’ claims were divided into three tiers. Plaintiffs in Tier 1 suffered the most significant injuries and had the greatest losses, and those who participated in the settlement reportedly received approximately $900,000. Plaintiffs in Tier 2 reportedly received approximately $400,000, while plaintiffs in Tier 3 reportedly received somewhere around $50,000 on average. In total, the average per-plaintiff settlement amount in that case was around $70,000, suggesting that the majority of plaintiffs were in Tier 3. If the pending global settlement involves a similar tier-based approach, plaintiffs will need to determine which tier they fall into before deciding whether it is in their best interests to participate in the settlement.

Pursuing a Hernia Mesh Lawsuit After the Global Settlement

While the anticipated global settlement will likely resolve many plaintiffs’ claims against C.R. Bard, many hernia mesh lawsuits will likely remain pending as well—and many patients and families who have not yet filed still have time to do so. With this in mind, what do you need to know about pursuing a hernia mesh lawsuit after the anticipated global settlement?

Here are some key considerations:

• Patients and Families Who Have Not Yet Filed Hernia Mesh Lawsuits Should Talk to a Lawyer Promptly – While many patients and families who have not yet filed hernia mesh lawsuits still have time to do so, time is running out on many claims. As a result, those who believe they may have claims (or don’t know and would like to find out) should speak with a lawyer as soon as possible. Learning about your legal rights costs nothing; and, if you have grounds to file a hernia mesh lawsuit, hiring a lawyer to handle your lawsuit costs nothing out of pocket.
• While the Anticipated Global Settlement Involves C.R. Bard, Other Companies Are Also Facing Hernia Mesh Lawsuits – C.R. Bard isn’t the only company facing litigation related to its hernia mesh products. Atrium, Becton Dickinson, Covidien, and Ethicon are all facing hernia mesh-related lawsuits as well. As a result, while the anticipated global settlement involves C.R. Bard specifically, new and prospective plaintiffs who have claims against other companies will need to continue to work with their lawyers to assert their legal rights. Hernia mesh litigation will be continuing to progress through courts across the United States for a long time, and the anticipated global settlement does not represent an end to the opportunity for patients and families to seek just compensation.
• Settling an Independent Hernia Mesh Lawsuit Remains a Possibility (But There Are No Guarantees) – Regardless of whether plaintiffs are eligible to participate in the anticipated global settlement with C.R. Bard, settling outside of the global settlement will remain a possibility. With that said, as we’ve already emphasized above, there are no guarantees. This means that plaintiffs who are eligible to participate should consider their options carefully, and those who pursue their lawsuits outside of the global settlement will need to rely on experienced legal counsel to seek just compensation on their behalf.

To date, patients and families who have had hernia mesh surgery have filed tens of thousands of hernia mesh lawsuits against C.R. Bard, Atrium, Becton Dickinson, Covidien, and Ethicon in courts nationwide. While the anticipated global settlement will represent the end of the road for some, many will need to continue to work with their lawyers to assert their legal rights. Ultimately, all plaintiffs must make informed decisions with their (and their families’) long-term best interests in mind; and, if a settlement offer is on the table, they will need to be able to rely on experienced legal counsel to help them decide what to do. Once plaintiffs settle their hernia mesh lawsuits, their claims are over—if they settle for too little, they cannot go back and ask for more. So, while settling may provide short-term relief, settling too soon can lead to more psychological and financial stress in the future.