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1. Vaginal Mesh MDL Judge Sick And Tired Of Bogus Suits

   Sep 7, 2016 | Law 360

   By Steven Trader
   
   
   The Georgia federal judge overseeing multidistrict litigation that alleges a Johnson & Johnson unit's defective pelvic mesh implants caused painful infections warned plaintiffs counsel Wednesday that frivolous lawsuits will no longer be tolerated and could trigger sanctions.

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

Online Sources

1. Vaginal Mesh MDL Judge Sick And Tired Of Bogus Suits

   Sep 7, 2016 | Law 360

   By Steven Trader

   The Georgia federal judge overseeing multidistrict litigation that alleges a Johnson & Johnson unit's defective pelvic mesh implants caused painful infections warned plaintiffs counsel Wednesday that frivolous lawsuits will no longer be tolerated and could trigger sanctions.
   
   U.S. District Chief Judge Clay D. Land said he has spent a considerable amount of time and judicial resources deciding summary judgments in consumer lawsuits against Mentor Corp. that plaintiffs counsel should have dismissed earlier or that should have never been brought in the first place. “Enough is enough,” Judge Land said.
   
   From here on out, all counsels of record in the MDL are on notice that any future order granting summary judgment in which no good faith basis existed for maintaining the action through the quick judgment phase will require plaintiffs counsel to show cause why sanctions should not be imposed, known as Federal Rule of Civil Procedure 11, according to Wednesday's order.
   
   “Thus it would behoove counsel to take a close look at your cases and decide whether you truly have a good faith basis for proceeding; and if you do not, dismiss the case,” Judge Land wrote.
   
   While the court understands that the mere granting of summary judgment does not warrant sanctions, “if the deadline for identifying experts has expired and you still have no idea how you’re going to improve specific causation, then failing to recognize that your case is no longer viable places you at risk of being sanctioned,” Judge Land said.
   
   “Similarly, if you did not file the action until eight years after your client’s doctor excised the Obtape and informed your client that it was causing her problems, you may face a serious challenge showing cause as to why sanctions should not be imposed,” he added.
   
   Hundreds of women allege that once Mentor's transobturator vaginal sling known as ObTape was implanted into their bodies, they suffered erosion of internal bodily tissues, including vaginal walls, and most women needed multiple surgeries to correct the problem.
   
   Mentor, which discontinued the product in 2006, is also accused of inadequately testing the device before introducing it in 2003. The U.S. Judicial Panel on Multidistrict Litigation consolidated the ObTape suits into Judge Land’s Georgia federal court in early 2015.
   
   Since that time, Mentor has settled one of the six designated bellwether cases, and three more were granted summary judgment by Judge Land in late 2015. He found at the time that the patients in the three suits all knew, or should have known, that their medical problems were linked to the ObTape sling years before they sued, putting their claims beyond the statute of limitations.
   
   On Wednesday, Judge Land indicated that he has started seeing an uptick in the number of cases filed by lawyers who “seem to think that their case will be swept into the MDL where a global settlement will be reached, allowing them to obtain recovery without the individual merit of their cases being scrutinized.”
   
   “This attitude explains why many cases are filed with little regard for the statute of limitations and with so little prefiling preparation that counsel apparently has no idea whether or how she will prove causation,” Judge Land wrote. “This phenomenon produces the perverse result that an MDL ... becomes populated with many nonmeritorious cases that must nevertheless be managed by the transferee judge — cases that likely never would have entered the federal court system without the MDL.”
   
   At a minimum then, transferee judges should be aware that they may need to take an approach that weeds out more nonmeritorious cases “early, efficiently and justly,” the judge said. “Hopefully the robust use of Rule 11 will help.”
   
   Representatives for the parties did not return a request for comment late Wednesday.
   
   The plaintiffs are represented by Derek H. Potts of The Potts Law Firm LLC, Douglas A. Kreis and Edward Blizzard of Aylstock Witkin Kreis & Overholtz PLLC, C. Calvin Warriner of Searcy Denney Scarola Barnhart & Shipley PA, and Mark DiCello of The DiCello Firm.
   
   Mentor is represented by Dustin B. Rawlin, Rebecca W. Gutierrez and John Q. Lewis ofTucker Ellis LLP.
   
   The MDL is In re: Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, case number 4:08-md-02004, in the U.S. District Court for the Middle District of Georgia.

   http://www.law360.com/articles/837317/vaginal-mesh-mdl-judge-sick-and-tired-of-bogus-suits
   

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