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Ethicon 10/8
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J&J Says It's Being Harassed During Mesh MDL Discovery
Oct 7, 2015 | Law360
By Dani Kass
Johnson & Johnson's Ethicon Inc. said Tuesday it's been hit with a deluge of individual discovery requests in multidistrict litigation over the company's transvaginal mesh devices that amounts to harassment since fact sheets aren't due until mid-November. -
Juror Talks in Cavness Pelvic Mesh Case!
Oct 7, 2015 | Mesh Medical Device News Desk
By Jane Akre
A juror in the Cavness trial has agreed to come forward after a call was put out on the last Mesh News Desk story. Your editor has confirmed through two sources that she was an actual juror. Here is what “Karen” has to say. She wants to remain anonymous. Likely Karen will respond to your questions beneath this story.
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J&J Says It's Being Harassed During Mesh MDL Discovery
Oct 7, 2015 | Law360
By Dani Kass
Johnson & Johnson's Ethicon Inc. said Tuesday it's been hit with a deluge of individual discovery requests in multidistrict litigation over the company's transvaginal mesh devices that amounts to harassment since fact sheets aren't due until mid-November.
Ethicon said it has been unable to focus on preparing for trial as plaintiffs have hit it with thousands of individual discovery requests, which it called an “abuse of the discovery process,” and asked for the court to confirm it doesn’t have to respond immediately. The court had earlier established in a pretrial order that plaintiffs need to wait until Nov. 19 when the defendant fact sheets are due before making such requests, Ethicon said.
“Compiling DFS information for 200 different plaintiffs simultaneously within that period of time is a significant undertaking that will require a substantial amount of time and effort from defendants, their counsel and document vendors,” Ethicon said. “Plaintiffs are seeking to unnecessarily and unfairly compound that burden by also forcing defendants to respond to individual discovery requests that seek much of the same information that the DFSs will provide, thereby distracting defendants from their efforts to prepare these cases for trial. “
Almost 850 of the requests Ethicon has received seek information that will be provided in the fact sheets and several push for the identities of experts that Ethicon says it doesn’t have to disclose until January, according to the filing.
The plaintiffs shot down Ethicon’s compromise that they be allowed to answer the interrogatories on Nov. 19, the company said. The pretrial order allows Ethicon an extra month, they said.
“Plaintiffs should not be allowed to upend the established discovery process and deadlines,” Ethicon said. “The court should deny their requests or, at the very least, adopt defendants’ compromise and extend the deadline for responding to the improperly served discovery until the DFS due date."
Ethicon rejected the plaintiffs’ argument that the pretrial order only applies to certain plaintiffs, saying the order specifies that it applies to “all cases” not just the “initial bellwether subgroup.” The order also states that the fact sheets are only necessary for the potential trial cases, the company said.
The plaintiffs also disproved their own defense that the three-year-old order doesn’t apply when they invoked it the same day on a different filing, the company said.
Ethicon said if the plaintiffs are worried that they need the information earlier because it's necessary to conduct depositions, they should have scheduled the depositions later.
Counsel for the plaintiffs didn't respond to requests for comment.
There are seven MDLs containing a total of more than 70,000 cases assigned to U.S. District Judge Joseph R. Goodwin over transvaginal surgical mesh devices used to treat pelvic organ prolapse and stress urinary incontinence.
Last year, J&J won the first bellwether case against it in a five-day trial that concluded when Judge Goodwin granted the defendants’ motion for judgment. The Fourth Circuit upheld that judgment in March.
The plaintiffs are represented by Henry G. Garrard III of Blasingame, Burch, Garrard & Ashley PC and Bryan F. Aylstock and Renee Baggett of Aylstock Witkin Kreis & Overholtz PLLC.
Ethicon and J&J are represented by David B. Thomas of Thomas Combs & Spann PLLCand Christy D. Jones of Butler Snow PLLC.
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. -
Juror Talks in Cavness Pelvic Mesh Case!
Oct 7, 2015 | Mesh Medical Device News Desk
By Jane Akre
A juror in the Cavness trial has agreed to come forward after a call was put out on the last Mesh News Desk story. Your editor has confirmed through two sources that she was an actual juror. Here is what “Karen” has to say. She wants to remain anonymous. Likely Karen will respond to your questions beneath this story.
Your editor thanks this juror for coming forward.
Q: What was the discussion in the jury room?
“The discussion in the jury room was very different depending on the day & the topic. We were given five questions to answer but if you answered “no” you could not proceed to the next set of questions.
‘The first question asked if there was a design defect with proximate cause in regards to Carol Cavness. The definition of proximate cause is a “substantial factor” which is where the first confusion set in. Substantial factor does not mean the LARGEST factor, it just means a large factor & that there could be numerous factors (which was explained to us by the judge).
‘This was the big go around on Friday. People said they do not think the mesh was the main cause & it was argued that it did not have to be the main cause. This was on Friday afternoon.
“On Friday afternoon everyone was insanely exhausted. We were to be there at 9 & they were not ready for us until 11:30. So we sat in a very small jury room for over 2 hours. Then we had to sit through closing arguments & then we were read the charges & by the time they let us deliberate it was Friday @ 3:30. As you know-best decisions are not made at 3:30 on a Friday afternoon, so we decided to call it quits for the day around 4:45 because we felt as though we were getting nowhere & Monday we would have had fresh minds.”
Q: Did the jury think they had reached a decision for the Plaintiff on Friday afternoon?
“I do not believe anything discussed Friday was relevant. No one was focused. Everyone was very stressed, tired & numerous other emotions. It’s a lot to have been thrown on us for a Friday.”
Q: What changed?
“Let me talk about what changed between Monday morning & Monday afternoon. When we got there Monday we submitted the question about proximate cause. Once that was explained we took a vote on the first question. The results were 9-3, in favor of the plaintiff. We had to reach 10-2 so this is the route we took. We asked the 3 (for the defendant) to explain why they thought what they thought & how they came to reach their decision. During that time people began to agree or say they were on the fence. We took another vote & it was 4(defendant)-3(plaintiff) 5-Maybe’s.
“The MAIN reason people changed their vote was because in all the doctor’s reports & evidence given, her pain was the same before the surgery as it was after the surgery. If her pain was exactly the same – how could it be the mesh? The defendants also argued throughout the case it was a pulled muscle in the pelvic floor & pelvic floor therapy would help substantially. This was recommended to her numerous times throughout the years & she barely started going Mid-2015; which did not help the case & although she is going now the jurors said “well now they have years & years to correct in therapy vs. if she would have gone in 2012.” That was a very large portion of what had changed.”
Q: What was the confusion about?
“The confusion was 100% with the question – “Was there a design defect.” We had sat in that court room for 2 weeks. We heard about her job, her family, her numerous surgeries to remove the mesh, whether the mesh was still inside Carol, whether the mesh took tissue out of Carol when it was explanted, internal emails from Ethicon asking “If there is no benefit with the mesh over native tissue repair why are we doing it.” We heard this for 2 weeks & the “design” of the Prosima was never discussed.
“It wasn’t that it was disproven that there WAS NOT a defect. It was not proven to us either way. The questions we were expecting were “should Ethicon ever have put this on the market” “is there still mesh in Carol Cavness” etc etc. Not if there was a design defect. They did talk about how the mesh was denser than that of Prolift or Prolift+M (not sure the technical name)- but it was brief & that is not a defect, it’s just their opinion.”
Q: Who was that guy who told the lawyers he didn’t like corporations and yet remained on the jury, he was not stricken?
“I have no idea who this would be? There were only 4 men (5 with an alternate) & I do not remember anyone saying that. We also did not find out Ethicon was a part of Johnson & Johnson (a giant corporation) until the juror’s were picked & opening statements started.”
“Let me know what else you may need!
“I am very, very sorry for the loss Carol Cavness has faced & the fact that she had to air all her “dirty laundry” to complete strangers. I hope & wished she would have won. Unfortunately, not everyone thinks the way I do.”
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