Ethicon 17/6

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Online Sources

1. Design Defect Claims Go Forward in Ethicon Mesh MDL

   Jun 16, 2015 | Law360

   By Jody Godoy
   
   
   A West Virginia federal judge ruled on Friday that 26 suits in a massive multidistrict litigation against Johnson & Johnson's Ethicon Inc. over pelvic mesh products should be consolidated and go to trial on their design defect claims.
2. J&J Facing 26 Pelvic Mesh Trials in November

   Jun 16, 2015 | Mesh Medical Device Newsdesk

   By Jane Akre
   
   
   In an attempt to move the enormous number of transvaginal pelvic mesh cases through his court, Judge Jethicon logooseph Goodwin on Friday ordered 26 cases naming Ethicon (Johnson & Johnson) to be heard November 2.

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Online Sources

1. Design Defect Claims Go Forward in Ethicon Mesh MDL

   Jun 16, 2015 | Law360

   By Jody Godoy

   A West Virginia federal judge ruled on Friday that 26 suits in a massive multidistrict litigation against Johnson & Johnson's Ethicon Inc. over pelvic mesh products should be consolidated and go to trial on their design defect claims.
   
   U.S. District Judge Joseph Goodwin, who oversees 70,000 mesh implant cases in seven MDLs, said 26 of the roughly 23,000 suits against Ethicon should go to trial in November. Those suits involve West Virginia plaintiffs who had surgery in the state to implant the company's TVT mesh device, according to the ruling.
   
   After he had consolidated the cases, Judge Goodwin denied plaintiffs' bid to systematically consolidate cases by state and device in a ruling without an accompanying explanation Tuesday.
   
   The Friday ruling consolidated the 26 cases for trial on negligent and strict liability claims for alleged design defects in the product. By consolidating the suits on those limited claims, the parties would be spared extra expense and any potential juror confusion could be easily managed, the judge said.
   
   “Indeed, this consolidation — on the discrete issues noted above — will save the parties the substantial cost of litigating multiple separate trials on these issues and, potentially, all remaining issues,” Judge Goodwin said in the consolidation order.
   
   The judge found the fact that plaintiffs' surgeries to implant the TVT device involved different doctors over the course of 13 years was irrelevant to the design defect claims. Because the surgeries all occurred within West Virginia, the suits are subject to the state's relevant laws, the judge said.
   
   In their denied motion for a case management order, the plaintiffs had asked for similar consolidation across all the cases in the MDL. They argued that moving forward with discovery in large waves of cases would put plaintiffs at a disadvantage.
   
   “A plan for consolidated trial is necessary to keep Ethicon from tilting the scales of justice in its favor through superior resources,” the plaintiffs had said in their June 4 motion. “Without a targeted endpoint, wave discovery for hundreds of cases simply depletes plaintiffs’ more limited resources.”
   
   Judge Goodwin has decided to manage the cases in waves in MDLs against other companies for similar devices.
   
   Earlier in June, a Kentucky federal judge severed claims against a surgeon in a pelvic mesh case and remanded them to state court while transferring the product liability suit to the MDL.
   
   Counsel for the parties did not reply to requests for comment Tuesday.
   
   Ethicon and J&J are represented by David B. Thomas of Thomas Combs & Spann PLLC.
   
   The plaintiffs steering committee is represented by Renee Baggett and Bryan F. Aylstock ofAylstock Witkin Kreis and Overholtz PLC and Thomas P. Cartmell of Wagstaff & Cartmell LLP.
   
   The MDL is In re: Ethicon Inc. Pelvic Repair System Products Liability Litigation, case number 2:12-md-02327, in the U.S. District Court for the Southern District of West Virginia.
   

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2. J&J Facing 26 Pelvic Mesh Trials in November

   Jun 16, 2015 | Mesh Medical Device Newsdesk

   By Jane Akre

   The lead case is Bryant, et al v. Ethicon, Inc. et al  (2:12-cv-09311).  The plaintiffs can be seen here in Pre Trial Order #182.

   In this action, all 26 plaintiffs allege they were implanted with TVT (transvaginal tape) used to treat stress urinary incontinence (SUI) and that the TVT has caused them a variety of life-altering injuries.

   Common issues of law and fact allow them to be consolidated into one trial. All of these surgeries were performed in West Virginia, the home of each plaintiff, but by different physicians. All of the meshes were made by Ethicon, a division of Johnson & Johnson.

   The product liability actions contend that products were defective in their design and manufacture and that the company was negligent in selling the polypropylene implants. The allegations also include negligence, a failure to warn, breach of express warranty, breach of implied warranty and punitive damages.

   J&J’s Ethicon division represents the largest number of cases, 26,524, and the defendant has indicated no willingness to offer mass settlements to resolve these cases, outside of settling individual cases, generally during or before litigation.

    

   Legal Standard

   Rule 42(a) allows the Court to consolidate actions when there are similar issues of fact or law.

   The Ethicon multidistrict litigation (MDL)  2:12-md-2327  was part of consolidation in Judge Goodwin’s court in early 2012.

   In creating this MDL, the Judicial Panel on Multidistrict Litigation ruled in its Transfer Order that “centralization will serve the convenience of the parties and promote the just and efficient conduct of this litigation.”  The MDL has since been expanded to now include seven defendants.
   

   In PTO # 182, Judge Goodwin states that in West Virginia, a design defect inquiry focuses on the date the product at issue was marketed, for these purposes October 2002, regardless of when the plaintiff received her implant. The question becomes whether the manufacturer used reasonable care in designing and manufacturing the product at the time it was marketed.

    

   
   The Allegations

   Made of polypropylene, a petroleum product, Ethicon makes a variety of meshes doctors use to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI). The company believes its products are safe and effective, despite the fact that it quietly removed four of its pelvic mesh products in June 2012.
   

   The Master Complaint alleges the plaintiffs have suffered the following injuries from the TVT implant:

   “The injuries, conditions, and complications suffered by women who have been implanted with Defendants’ [TVT] include, but are not limited to, mesh erosion, mesh contraction, infection, fistula, inflammation, scar tissue, organ perforation, dyspareunia (pain during sexual intercourse), inability to engage in sexual relations, urinary problems, inability to void, blood loss, neuropathic and other acute and chronic nerve damage and pain, pudendal nerve damage, shortening of the vagina, pelvic floor damage, chronic pelvic pain, urinary and fecal incontinence, prolapse of organs, and in many cases the women have been forced to undergo intensive medical treatment, including but not limited to, operations to locate and remove mesh, operations to attempt to repair pelvic organs, tissue, and nerve damage, the use of pain control and other medications, injections into various areas of the pelvis, spine, and the vagina, and operations to remove portions of the female genitalia.”

   The women received their mesh implants from different physicians and unlike other trials, there are no allegations of medical  malpractice filed against the doctors. The implant surgeries took place over a thirteen-year span of time.

    

   TVT’s Recent $100 Million Loss
   
   This new wave of cases against the TVT, transvaginal tape, erodes the traditional belief that TVT or “tape”  or “slings” are safe and effective.  The tape hammocks a sagging urethra or bladder improving urinary flow.  In fact, medical societies still refer to TVT as the “Gold Standard”, however, that confidence is eroding.

   A TVT  mesh made by Boston Scientific, was the subject of a jury ruling in the recent Deborah Barba case that resulted in a $100 million jury award including $75 million in punitive damages.

   The Barba case was the first trial to find the TVT was defectively designed, precedent setting in all mesh litigation.#

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