Ethicon Media Monitoring 09/13/16

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

Online Sources

1. Lawyers Warned They May Pay For Filing Frivolous Suit

   Sep 12, 2016 | Bloomberg Businessweek

   By Paul Barrett
   
   
   Lawyers who defend companies in product liability cases are celebrating an unusual order by a federal judge in Columbus, Georgia. In it, he told attorneys for the other side—the ones who represent injured consumers—that he was going to crack down on frivolous claims, and that the penalty could come from their wallet.
2. Mesh-Injured Woman Remembers 9/11 and the Darkness of Life

   Sep 12, 2016 | Mesh Medical Device Newsdesk

   As I watched the 9/11 remembrances today marking the 15 year anniversary, the smell and noise of Ground Zero came rushing back to me. On September 18, 2001, I was sent to New York as a national disaster volunteer for the Red Cross. I was assigned to drive an ERV( the big ambulance type vehicle you see on television).

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

Online Sources

1. Lawyers Warned They May Pay For Filing Frivolous Suit

   Sep 12, 2016 | Bloomberg Businessweek

   By Paul Barrett

   A stern ruling in a case over defective medical devices is good news for companies.

   Lawyers who defend companies in product liability cases are celebrating an unusual order by a federal judge in Columbus, Georgia. In it, he told attorneys for the other side—the ones who represent injured consumers—that he was going to crack down on frivolous claims, and that the penalty could come from their wallet.

   The five-page order appeared last week from Chief U.S. District Judge Clay Land of the Middle District of Georgia. He issued it in connection with hundreds of consolidated cases he oversees concerning a “vaginal mesh” device made by Johnson & Johnson unit Mentor Corp. that’s designed to treat urinary stress incontinence.

   Now, it’s true that bashing plaintiff’s lawyers for frivolous litigation is old hat. But the reason company lawyers are excited by Land’s handiwork is that he placed the blame for such dubious claims on the procedures courts use to consolidate cases. Land, appointed to the bench by Republican President George W. Bush, said in his Sept. 7 ruling that he’s “had to waste judicial resources deciding motions in cases that should have been dismissed by plaintiffs’ counsel earlier—cases that probably should never have been brought in the first place. Enough is enough.”

   From now on, he warned, he would impose sanctions, including possible money penalties, when dismissing such flimsy cases.

   The Washington Legal Foundation, a pro-business advocacy group, praised Land for his“spot-on critique of the multi-district litigation process.” Multi-district litigation, or MDL, is a procedural mechanism by which the federal courts group together related suits—such as the Mentor vaginal mesh cases—and put them under the supervision of a single judge. The idea is that the MDL judge can help the parties resolve certain pretrial issues the cases may have in common and thereby speed up a settlement, or trial.

   Judge Land observed that whatever the advantages of the process, there are also “unintended consequences.” One is that the tendency of MDLs to end in global settlements creates an incentive “for the filing of cases that otherwise would not be filed if they had to stand on their own merit,” Land asserted. In other words, attorneys with flimsy lawsuits jump on the bandwagon knowing they’ll probably get a piece of the pie without anyone taking a hard look at their client’s case. Such suits are often filed for claims that are too old and with only a minimal amount of evidence, he wrote.

   “This phenomenon produces the perverse result that an MDL, which was established in part to manage cases more efficiently to achieve judicial economy, becomes populated with many non-meritorious cases,” Land wrote, “cases that likely never would have entered the federal court system without the MDL.”

   Since 2010, tens of thousands of vaginal mesh cases have been filed against a half-dozen device makers in federal courts around the country. Johnson & Johnson has faced the most claims. To handle the vast caseload, MDLs have been arranged in New Jersey, West Virginia, and elsewhere. Women who have had mesh inserted to support sagging organs or treat incontinence have subsequently complained that the devices eroded and caused a variety of injuries.

   Judge Land’s Mentor MDL began with 22 cases and grew to more than 850—an “explosion,” he said, that “appears to have been fueled, at least in part, by an onslaught of lawyer television solicitations.” So far, Land has presided over three trials, decided about 100 summary judgment motions (aimed at throwing out lawsuits before trial) and presided over 458 confidential settlements. Plaintiffs have dropped 74 cases voluntarily. (The device in question was taken off the market in 2006.)

   From here on out, Land warned, plaintiffs attorneys should assume that he’ll make “robust use of Rule 11,” the federal court rule that provides for sanctions against attorneys. And he urged other judges to follow his example.

   https://www.bloomberg.com/news/articles/2016-09-12/lawyers-warned-they-may-pay-for-filing-frivolous-suits
   

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2. Mesh-Injured Woman Remembers 9/11 and the Darkness of Life

   Sep 12, 2016 | Mesh Medical Device Newsdesk

   As I watched the 9/11 remembrances today marking the 15 year anniversary, the smell and noise of Ground Zero came rushing back to me. On September 18, 2001, I was sent to New York as a national disaster volunteer for the Red Cross. I was assigned to drive an ERV( the big ambulance type vehicle you see on television).

   I worked out of St. John’s University, which had become the center of red cross services and I drove to Duane Street, in Tribeca area, to pick up and load food from 10:00 at night to 10:00 the next morning. It was grueling,exhausting work. Normally, the red cross helps survivors of disasters like floods, hurricanes, tornadoes (I worked in all of these disasters).

   We didn’t have survivors. We were there to take care of the search and rescue workers, hundreds and hundreds of them. At one point, we served more than 15,000 meals per day.

   I witnessed horrendous pain and suffering, watched frantic firemen with the soles of their boots burned off from the heat of the pile as they searched for sons, daughters, parents, and friends. I watched volunteer veterinarians care for the burned paws of search dogs.

   I watched policeman, fireman, FBI, CIA, volunteer rescue workers smile as they read the thousands of letters that came to ground zero from school children all over the country. And that smile is why I am writing this post. Some people on this site have told me I do not write with feeling, with the anger that accompanies this terrible mesh experience. Ground Zero is why I let go of my anger. I saw scores or ordinary people who were brutally thrust into this hell that no one could have ever imagined.

   I was angry with God, very angry. And yet in the middle of it all, there were smiles, a glimmer of hope. Not many at first, but as the weeks went on (I was there for a month) some joy seeped in. The night the Yankees (or Mets) won their division in baseball was my last week there. They watch the televisions and cheered.

   I decided when I left Ground Zero that I would make a commitment to find joy even when I didn’t want to, even when life is so hard I wanted to die. I felt a strong need to honor those I served and those who died.

   Seven years after my Ground Zero assignment, I was implanted with mesh. Ground zero is the lens I look at life through, the context of my conscious. It was so much more than a Red Cross assignment. it was a time of epiphany, a life-changing experience that is hard to put into words. As I face a day with pain, I am encouraged to press forward by my ground zero experience. Seeing what I saw at Ground Zero does not make me minimize the mesh pain, but it does allow me to reduce my suffering by understanding that we all swim in the fundamental darkness of life.

   It is my responsibility to live my life in a way that shines a light when I can.

   When I left New York, I pledged to tell my story every year so others will remember. I didn’t schedule a program today, so, Jane, if you will print this somewhat off topic post you will be helping me fulfill my pledge and hopefully this might be a light of encouragement to some of our mesh family. ##

   http://www.meshmedicaldevicenewsdesk.com/mesh-injured-woman-remembers-911-darkness-life/
   

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