Morcellator Cancer Lawsuits: How Cases Are Filed

Denise Whitfield’s life took a drastic turn for the worse the day she came into contact with the power morcellator, a surgical device that can spread hidden cancers.

Shortly after undergoing a routine hysterectomy during which the device was used, Denise was diagnosed with advanced bone and breast cancer.

Patients Are Filing Morcellator Cancer Lawsuits

Denise filed a lawsuit against Karl Storz Endoscopy and related companies that were responsible for the production of the Rotocut G1 power morcellator used in her hysterectomy.

She seeks to gain compensation for the hardship she endures on a daily basis—the pain, stress, exhaustion, and financial strain from both the disease itself and from her intensive cancer treatment regimen.

Though one power morcellator case has already settled so far, Denise and 20 other patients who filed morcellator cancer lawsuits in districts across the U.S. are still fighting for justice.

Manufacturers Were Aware of Risks, Plaintiffs Say

On what basis do plaintiffs want to sue power morcellator manufacturers?

One allegation shared by many if not by all of the pending morcellator lawsuits says that device manufacturers had ready access to a body of literature dating back at least 2 decades that expresses concerns over cancer-spreading risks inherent in morcellation.

Thus, plaintiffs claim that although the FDA had just issued alerts about power morcellators in 2014, manufacturers should have been aware of the risks even before the first mocellator models were released in the early 1990’s, and yet they failed to act on this information to safeguard consumers.

Typical Allegations

Though power morcellator lawsuits can be highly individual and contain unique circumstances, allegations against defendants tend to be similar and often fit in the following categories:

• Negligence.  This category covers a large spectrum of allegations and refers to a set of duties that defendants were obligated by law to perform.  For example, device manufacturers are supposed to avoid harming consumers in any duty they fulfill, including manufacturing, labeling, marketing, and distribution of their products.  Therefore, any failure on the manufacturer’s part to protect patients against the cancer-spreading risks of morcellation can be cited as a count of negligence, whether it be insufficient product labeling or omission of information during product sales.
• Design/Manufacturing Defects.  These allegations target the fact that evidence of the possible dangers of power morcellators was readily available to manufacturers and yet designs were not significantly altered.  These products were in good condition and operated as instructed by manufacturers during the plaintiffs’ surgeries and still allegedly inflicted harm.  This suggests that the problem originates in the design or manufacture rather than the use or operation of the products.
• Breach of Implied and/or Express Warranty.  This set of allegations refers to implied or explicit promises from manufacturers that their products are safe for use.  Plaintiffs accuse manufacturers of breaching these warranties by selling a dangerous product, potentially exposing the consumer to life-threatening risks without proper warning.

What Forms Can Morcellator Lawsuits Take?

Though morcellator lawsuits often share the aforementioned allegation types, they can be framed in various ways.  The following are 3 different types of lawsuits that morcellator cases have assumed:

1. Product Liability.  Most of the allegations mentioned so far apply mainly to this type of lawsuit, in which manufacturers are held liable for injuries and damages caused by design/manufacturing defects of an unsafe product, failure to warn/inform consumers of risks, and breaches of warranty.
2. Medical Malpractice.  Not all plaintiffs in the current morcellator lawsuits have exclusively named manufacturers as defendants.  Some also want to sue their hospitals, doctors, and other medical staff for failing their duties to keep patients safe.  The amount of information given to patients prior to surgery is of prime importance in a medical malpractice suit.
3. Wrongful Death.  In cases where patients died from advanced cancer contracted after morcellation, their surviving spouses or other family members may file for wrongful death.  In these claims, plaintiffs aim to receive compensation to help recover the losses incurred from financial loss of support from the deceased family member and expenses relating to the death.

The Possibility of Multi-District Litigation (MDL)

When multiple cases that share defendants and similar allegations surface, the question of handling the cases together for expediency arises, since numerous lawsuits can clog the legal system, requiring lots of time and resources for everyone involved.  Two legal processes that involve consolidation can be employed in such cases—class action lawsuits and multi-district litigation (MDL).

Though class action lawsuits require little time and resource commitment for all but one or two plaintiffs who are responsible for representing all members of the class action, these lawsuits also often offer little to no reward for most participants and do not allow most members to give input for the direction of the suit.

This is why we at The Disability Guys Pennsylvania expect that morcellator cancer lawsuits will likely instead be handled via multi-district litigation, a process that groups lawsuits together under one court solely for pre-trial proceedings such as discovery.

The constituent cases in an MDL remain separate lawsuits and the individual plaintiffs retain their right to accept a settlement or to proceed to trial.

Financial compensation secured in MDL cases also belong solely to individual plaintiffs–there is no division of court awards or settlements.

Indeed, a hearing has been scheduled to take place before the Judicial Panel for Multi-District Litigation, in which 6 power morcellator plaintiffs will request for the 21 currently-pending lawsuits to be transferred to the U.S. District Court for the District of Kansas, under an MDL number of 2652.

To learn more about class action lawsuits and MDL and the distinctions between the two, visit our “Class Action or MDL?” page.

More Patients Will Likely File Claims

Until recently, thousands of women every year received operations involving power morcellators in the U.S. alone.  As news of the pending morcellator lawsuits spreads, we expect that more patients will exercise their right to legal action.

If you or someone close to you may have been harmed by a power morcellator, you can count on the seasoned attorneys at The Disability Guys Pennsylvania to help you explore your legal options.  Contact us today for a free case evaluation.