Consolidation of da Vinci Robotic Surgery Litigation to be Heard Next Week

A panel of federal judges is scheduled to hear oral arguments next week on whether all federal product liability lawsuits filed over problems with the da Vinci surgical robot should be consolidated before one judge for coordinated pretrial handling. 

According to a hearing schedule (PDF) issued by the U.S. Judicial Panel on Multidistrict Litigation (JPML), a motion to consolidate the robotic surgery litigation will be considered on July 26, in Cleveland, Ohio.

At the time the motion was filed in May, there were at least four da Vinci robotic surgery lawsuits filed in four different U.S. District Courts, in Alabama, Louisiana, Mississippi and New York.

All of the complaints involve similar allegations that individuals experienced severe and sometimes fatal injuries following da Vinci robotic surgery, where they suffered internal burns, tears and other complications.

Common Allegations Raised in da Vinci Lawsuits

The da Vinci Surgical System is a complex robot, which features four remote controlled arms and a camera, allowing surgeons to operate through a small incision with a joystick-like control. The machine has been increasingly used in recent years amid aggressive marketing by the manufacturer, Intuitive Surgical, Inc., which promotes the less invasive nature of the procedure, with smaller scars and faster recovery times.

However, according to allegations raised in the complaints, Intuitive Surgical sold the robotic surgery system without ensuring proper training and instructions for surgeons, and without providing adequate warnings for consumers about the risk of problems that may develop during the robotic surgery with da Vinci.

While research has suggested that it can take 200 or more robotic surgeries before a surgeon becomes proficient with the da Vinci system, Intuitive Surgical has been criticized for selling the machine with a program that only provides a few days of training.

Complaints also allege that the machine contains design defects that were not adequately disclosed, claiming that the monopolar energy used to cut, burn and cauterize tissue may “arc” outside of the surgical field, potentially causing damage to surrounding organs, vessels or tissue. In many cases, surgeons are not even aware of these problems and patients are sent home after surgery, only to discover the severe and life-threatening complications days later.

da Vinci Robotic Surgery MDL Petition

In May 2012, a motion was filed by plaintiff Patricia Mayfield with the U.S. JPML, seeking to consolidate and centralize the da Vinci robotic surgery litigation as part of an MDL, or multidistrict litigation.

Such consolidation is used in complex litigation where there are a large number of claims involving similar allegations or facts. The process is designed to reduce duplicative discovery across many cases, eliminate contradictory pretrial rulings from different judges and to serve the convenience of the witnesses, the parties and the courts.

Mayfield proposed that the da Vinci robotic surgery MDL be placed in the U.S. District Court for the Southern District of Mississippi, before U.S. District Judge Carlton Wayne Reeves. In the alternative, Mayfield indicated that the U.S. District Court for the Northern District of California would be a particularly convenient forum, as it is the home state of Intuitive Surgical.

In a response filed by Intuitive Surgical, the manufacturer has indicated that they oppose the attempt to consolidate the litigation over their da Vinci robot, arguing that there are not enough cases to justify an MDL and there is no indication that consolidation of the cases will serve any purposes. However, if a da Vinci MDL is formed, Intuitive Surgical has indicated that they believe the lawsuits should be centralized in the U.S. District Court for the Northern District of California.

At the MDL Panel meeting next week, a group of federal judges will determine whether the cases qualify for consolidation and determine what the most appropriate forum would be.

Although there are not currently a large number of da Vinci lawsuits filed in the federal court system, many lawyers expect that the robotic surgery litigation will grow as cases continue to be investigated and filed.