We’ve written before about the problems facing Intuitive Surgical and its da Vinci surgical robot. Several federal lawsuits have been filed, and some lawyers think that the time is ripe to group these cases together in type of class action known as multidistrict litigation, or MDL.
An MDL is a grouping of individual cases that share similarities—oftentimes these are cases by people against one company, over one specific product. The argument for consolidation of these cases is that it is more cost effective for all similar cases to be shepherded together by one judge, who can make sure that discovery and important rulings are consistent and efficient. If the MDL is approved, any later-filed federal cases would be joined with the group. The judge manages the cases through discovery, perhaps does a few test trials, and oftentimes tries to encourage settlement of the cases. If they don’t settle, the cases typically split up and go back to their home courts for individual trials.
In what is now known as MDL No. 2381, In Re: Intuitive Surgical, Inc., Da Vinci Robotic Surgical System Products Liability Litigation, the plaintiffs in a case filed in Mississippi requested on May 9, 2012 that all other present (three other lawsuits). The hearing to decide whether the plaintiffs get their wish is set for Cleveland, Ohio on July 26, 2012.
The Mississippi case alleges that the da Vinci caused damage to her bowel and vagina during a hysterectomy. Interestingly, there is no medical malpractice component to the lawsuit—it is strictly a claim that the da Vinci is defective and/or that the company failed to properly train physicians. Those plaintiffs request that all da Vinci cases be sent to the U.S. District Court for the Southern District of Mississippi, before Judge Carlton Wayne Reeves.
The defendant, Intuitive Surgical, opposes consolidation of all these cases. Its argument is that only a small number of da Vinci surgical robot lawsuits exist, and that any advantages can be accomplished informally between different judges. If Intuitive Surgical loses the motion, they request that the cases be grouped together before a judge in the Northern District of California.
Since the filing of the petition, at least one other lawsuit has been filed. This case, by a Michigan woman, states that a blade broke off of the da Vinci during a hysterectomy, and become lost inside the woman’s abdomen. The surgeon had to stop the surgery and perform exploratory surgery to find the half-centimeter blade.
My bet is that the da Vinci class action-MDL will not be approved. These cases are similar because they are against a single company for a single product, and all but one was for hysterectomies. However, the differences between the cases are striking. One case involves a lost surgical blade. Two involve the cutting of areas in the vicinity of the surgical site. One involves the wrongful death of a woman who suffered severe burns and blood loss. One involves scaring after a procedure was converted to an open procedure after a da Vinci malfunction. These dissimilarities, in conjunction with the very few number of filed cases, make it likely that consolidation will be rejected at this time. The plaintiffs can request consolidation again later, particularly if more da Vinci defect cases are filed.
The panel will rule shortly after July 26, and we’ll know the future of the da Vinci injury lawsuits.