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Ethicon Media Monitoring 09/14/16
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Georgia federal judge rips plaintiffs attorneys in vaginal mesh MDL, says he’s tired of baseless lawsuits
Sep 13, 2016 | Legal Newsline
By Jessica Karmasek
A federal judge overseeing multidistrict litigation brought over vaginal mesh devices ripped plaintiffs lawyers in an order last , warning attorneys to “take a close look” at their cases before proceeding or face sanctions for baseless lawsuits. -
Boston Scientific Pelvic Mesh Trial Win Overturned
Sep 13, 2016 | Law360
By Cara Salvatore
The Massachusetts Appeals Court ruled Tuesday that a new trial must be held for a woman who said Boston Scientific's surgical mesh was defective, because a judge kept critical evidence about what the company knew about the product's dangers out of the trial.
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Sep 13, 2016 | Legal Newsline
By Jessica Karmasek
COLUMBUS, Ga. (Legal Newsline) - A federal judge overseeing multidistrict litigation brought over vaginal mesh devices ripped plaintiffs lawyers in an order last , warning attorneys to “take a close look” at their cases before proceeding or face sanctions for baseless lawsuits.
Chief Judge Clay D. Land of the U.S. District Court for the Middle District of Georgia, in his five-page order inIn RE: Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, basically says he is tired of weeding through the lawsuits, many of which never should have been brought, he contends.
“The Court has spent considerable time in this MDL deciding summary judgment motions when plaintiff’s counsel should have known that no good faith basis existed for pursuing the claim to the summary judgment stage,” Land wrote in the Sept. 6 order. “Some of these cases involved claims that were clearly barred by the applicable statute of limitations. In others, plaintiff’s counsel was unable to identify a specific causation expert or point to other evidence to create a genuine factual dispute on causation. And in some cases, counsel threw in the towel and did not even bother to respond to the summary judgment motion.
“Nevertheless, the Court had to waste judicial resources deciding motions in cases that should have been dismissed by plaintiff’s counsel earlier -- cases that probably should never have been brought in the first place. Enough is enough.”
Land is overseeing hundreds of vaginal mesh lawsuits that were consolidated for pretrial purposes. He has been on the federal bench for 15 years and has served as a multidistrict litigation, or MDL, transferee judge twice.
While MDL consolidation is considered the best procedure for the “efficient resolution” of aggregate tort litigation, the judge has his doubts.
Land says in his experience, such consolidations are not without “unintended consequences.”
The fed-up judge contends that by providing an “alternative dispute resolution forum,” the MDL process has produced incentives for the filing of cases that otherwise would not be filed if they had to stand on their own merit as a stand-alone action.
“Some lawyers seem to think that their case will be swept into the MDL where a global settlement will be reached, allowing them to obtain a recovery without the individual merit of their case being scrutinized as closely as it would if it proceeded as a separate individual action,” Land wrote.
“This attitude explains why many cases are filed with little regard for the statute of limitations and with so little pre-filing preparation that counsel apparently has no idea whether or how she will prove causation. It also may explain why some lawyers seek to withdraw from representation when a global settlement is not forthcoming, leaving their clients abandoned to proceed pro se in a complex MDL proceeding.”
He continued, “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 that must nevertheless be managed by the transferee judge -- cases that likely never would have entered the federal court system without the MDL.”
Land says the counsel of record in any case in the MDL now are “on notice” that they could face sanctions for bringing a baseless lawsuit and maintaining the action through the summary judgment stage.
“... the Court intends to include an addendum in the order requiring counsel to show cause why sanctions should not be imposed,” he wrote. “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.”
The frustrated judge, in getting more specific, seems to take shots at the plaintiffs’ lawyers in the vaginal mesh cases.
“The Court certainly understands that the mere granting of summary judgment does not warrant sanctions,” Land wrote in his short but blistering order. “But if the deadline for identifying experts has expired and you still have no idea how you are going to prove specific causation, then failing to promptly recognize that your case is no longer viable places you at risk of being sanctioned.
“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.”
The ObTape vaginal sling lawsuits all similarly allege that the ObTape -- also referred to as transobturator vaginal sling -- after being implanted in a woman’s body, would begin to deteriorate. This mesh erosion allegedly caused severe damage to internal bodily tissues and the vaginal walls.
Vaginal mesh products, also known as transvaginal mesh systems or vaginal slings, are medical devices made from porous synthetic materials that are implanted in the body to treat pelvic organ prolapse and urinary incontinence.
While the ObTape was discontinued by J&J’s Mentor in 2006, many women still had the vaginal sling present in their bodies after the fact. Additionally, several of the vaginal sling lawsuits allege Mentor did not adequately test their vaginal sling before introducing it to the medical device market in 2003.
http://legalnewsline.com/stories/511009186-georgia-federal-judge-rips-plaintiffs-attorneys-in-vaginal-mesh-mdl-says-he-s-tired-of-baseless-lawsuits
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Boston Scientific Pelvic Mesh Trial Win Overturned
Sep 13, 2016 | Law360
By Cara Salvatore
The Massachusetts Appeals Court ruled Tuesday that a new trial must be held for a woman who said Boston Scientific's surgical mesh was defective, because a judge kept critical evidence about what the company knew about the product's dangers out of the trial.
In July 2014, a Massachusetts jury returned a verdict in favor of Boston Scientific Corp. in the first product liability lawsuit involving the company’s pelvic mesh products to go to trial. The jury found BSC's Pinnacle Pelvic Floor Repair Kit was not defectively designed. Plaintiff Diane Albright had said that Pinnacle caused severe pain and other physical side effects. Albright claims neither she nor her physicians were warned before surgery about the Pinnacle kit's allegedly defective design.
The trial judge improperly excluded information about a warning that appeared on the material safety data sheet for the polypropylene that BSC made the device out of, the appeals court said.
“The MSDS caution was relevant, material evidence admissible for the limited purpose of showing that BSC, which had received the MSDS well before 2009, had notice or knowledge of the content of the caution,” it said.
“Exclusion of the MSDS caution substantially affected Albright's rights as, without this key piece of evidence, the jury did not have a complete picture of the information bearing on the safety of the Pinnacle device that BSC either knew of or, in the exercise of reasonable care, should have known about,” it said.
That goes to the heart of BSC's ability to foresee the problem, and “no other evidence before the jury served a similar function,” the panel said.
The caution in question said, "Do not use this [polypropylene] material in medical applications involving permanent implantation in the human body or permanent contact with internal body fluids or tissues.”
During opening arguments, Albright’s attorneys told the jury the Pinnacle device was too large to be safely implanted and is made of a plastic that in addition to being too heavy, makes the device nearly impossible to remove in the event of complications. Albright had the device implanted in 2010 to treat a cystocele, also known as bladder prolapse.
After thousands of lawsuits filed against Boston Scientific and other companies including Johnson & Johnson's Ethicon unit, Covidien PLC and C.R. Bard Inc., the U.S. Food and Drug Administration issued two proposed orders in April 2014 that would reclassify surgical mesh for transvaginal repair of pelvic organ prolapse as a high-risk device and require manufacturers to apply for premarket approval.
That same month, Endo International PLC, another pelvic mesh manufacturer, reached an $830 million settlement resolving most of the 22,000 vaginal mesh suits against its American Medical Systems Inc. subsidiary.
Judges Cypher, Katzmann, & Massing sat on the panel for the Massachusetts Appeals Court.
The plaintiff is represented by Fred Thompson III, Fidelma Fitzpatrick and Jonathan Orent ofMotley Rice LLC; Edward A. Wallace of Wexler Wallace LLP; Erin Copeland of Fibich Leebron; and Kimberly Dougherty of Janet Jenner & Suggs LLC.
The defendant is represented by Jon Strongman and Robert T. Adams of Shook Hardy & Bacon LLP and Susan Donnelly Murphy of Murphy & Riley PC.
The case is Diane Albright v. Boston Scientific Corp., case number MICV2012-00909, in the Superior Court of the Commonwealth of Massachusetts, County of Middlesex.http://www.law360.com/articles/839345/boston-scientific-pelvic-mesh-trial-win-overturned
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