Power morcellators are electric surgical devices used to cut tissue that have been used in recent years as an alternative to traditional, abdominal surgical hysterectomies, laparotomies and myomectomies.

In April 2014, the Food and Drug Administration discouraged the use of power morcellation during hysterectomy or myomectomy to treat women with uterine fibroids.

Over 25 federal lawsuits were filed against the makers of power morcellators. According to the Plaintiffs, as far back as the early 1990’s, the manufacturers of the power morcellators knew that tissue fragments created by the morcellation process are frequently left in the abdominal and the pelvic cavity and can become implanted in surrounding tissue or organs, which causes cancer in those organs.

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Plaintiffs filed a petition to create a Multidistrict Litigation.  Plaintiffs contended that besides the power morcellator lawsuits pending in federal courts around the country, numerous additional claims are expected or have already been filed in several state court venues.  The manufacturer of the devices opposed centralization.  They argued that unique factual questions regarding plaintiffs will overshadow any common question of fact.

The Judicial Panel on Multidistrict Litigation (“JPML”) granted Plaintiffs’ request for the creation of a MDL concerning lawsuits alleging a link between the use of the power morcellators and the spread of cancer, to the District of Kansas.  The JPML disagreed with the defendants, stating that while the lawsuits may present individual factual issues, “these actions involve common factual questions surrounding the design, testing, manufacture, and marketing of Ethicon’s power morcellor, including the warning accompanying those devices and whether they should have included a bag to contain tissue.”

In an October 15, 2015, Order, the JPML appointed Judge Kathryn H. Vratil, to oversee the coordinated proceedings.  According to the Order, lawsuits concerning the power morcellators against Ethicon, Inc., Ethicon Endo-Surgery Inc., Johnson & Johnson, Karl Stortz Endoscopy- America Inc. and Richard Wolf Medical Instruments Corp., were transferred to Kansas City.

The JPML found the lawsuits involve common questions of fact, and that centralization “will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.”  In addition, “centralization will eliminate duplicate discovery, avoid inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary,” the JPML determined.

The Order set forth:

“These actions all involve common factual questions arising from the allegations that (1) defects in the design of Ethicon’s power morcellators made laproscopic hysterectomy or myomectomy procedures more likely to result in the dissemination and upstaging of occult cancer or other conditions, and (2) Ethicon failed to warn patients adequately of these risks given the FDA’s recent communication discouraging the use of power morcellation for treatment of uterine fibroids and revising the risk that uterine fibroids were actually sarcoma.”