Ethicon 11/2

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

Online Sources

1. Ethicon Blocking Witnesses In Pelvic Mesh MDL, Victims Say

   Nov 2, 2015 | Law360

   By Dani Kass
   
   
   Johnson & Johnson unit Ethicon has stopped two of its key employees from testifying in multidistrict litigation blaming it for injuries tied to its transvaginal mesh products, according to alleged victims who asked a West Virginia federal court Friday to let the employees testify live by video

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

Online Sources

1. Ethicon Blocking Witnesses In Pelvic Mesh MDL, Victims Say

   Nov 2, 2015 | Law360

   By Dani Kass

    Johnson & Johnson unit Ethicon has stopped two of its key employees from testifying in multidistrict litigation blaming it for injuries tied to its transvaginal mesh products, according to alleged victims who asked a West Virginia federal court Friday to let the employees testify live by video.
   
   Ethicon Inc. has blocked the plaintiffs from bringing in engineer Dan Smith and marketing executive Laura Angelini to testify at trial, according to the motion. Since the court can’t subpoena out-of-state witnesses to appear live, the plaintiffs said live video testimony will be the best way to ensure a fair trial.
   
   “These witnesses possess knowledge that is crucial to this bellwether case,” the motion states. “Defendants’ refusal to produce the requested witnesses is an attempt to gain a tactical advantage over plaintiffs, as testifying by live video would not create an undue burden on these witnesses.”
   
   The trial, combining 37 cases, is part of an MDL of more than 23,000 cases claiming Ethicon’s mishandling of transvaginal surgical mesh devices caused serious injuries to patients. The cases also claim Ethicon and related entities failed to provide appropriate warnings and instructions regarding the risks and dangers posed by the devices, which are used to treat pelvic organ prolapse and stress urinary incontinence.
   
   If the court were to refuse the motion for live video testimony, the plaintiffs asked that Ethicon be barred from using witnesses live that it has denied to the plaintiffs and require a deposition to be used in lieu of live testimony for both sides.
   
   Both Smith and Angelini have been called the people most knowledgeable in the company regarding several aspects of transvaginal mesh devices, with the latter nicknamed the “godmother” of the device, according to the motion.
   
   Smith has worked at the company for more than 30 years, helping develop products with the same mesh as the one in question, according to the plaintiffs. He’s most knowledgeable for at least 25 related topics including operating procedures in designing the device, the design history and testing the device from a design standpoint.
   
   “Mr. Smith has intimate knowledge of the design of the TVT that will be essential for the jury to determine facts at issue during trial,” the motion states.
   
   Angelini has worked for J&J and its subsidiaries for more than 20 years, serving as director of marketing and vice president of marketing at Gynecare, the division of Ethicon which was responsible for marketing the device. She is considered most knowledgeable in topics including the mesh that was used in a study to get it approved by the U.S. Food and Drug Administration and the mesh used in another study that became the “cornerstone” of the transvaginal mesh marketing program, the motion states.
   
   Ethicon has said they may bring Smith and Angelini to testify live, proving there is no undue burden, the motion states. Without the live video, the court runs the risk of Ethicon being able to present these witnesses live whereas the plaintiffs would have to rely on videotaped testimony.
   
   J&J didn’t immediately respond to requests for comment Monday.
   
   Like many of the already-centralized actions, the claims arise from allegations that the mishandling of the transvaginal mesh by Ethicon and related entities resulted in serious injuries to recipient patients and that Ethicon and the others didn't provide appropriate warnings and instructions regarding the risks and dangers posed by the devices.
   
   This trial specifically will be over the negligent design defect and strict liability defect, the motion states.
   
   In October, Ethicon said it was being harassed by plaintiffs who had submitted thousands of individual discovery requests even though fact sheets aren’t due until November. The company said it has been unable to focus on preparing for trial as a result of the onslaught of thousands of individual discovery requests, which it called an “abuse of the discovery process” and asked the court to confirm that it doesn't need to respond immediately.
   
   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 plaintiff’s motion was filed by Fidelma L. Fitzpatrick of Motley Rice LLC. Plaintiffs in the MDL are represented by counsel from numerous firms.
   
   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.
   

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