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Ethicon Media Monitoring 11/03/16
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Oldest J&J Pelvic Mesh Cases Readied for Trial in West Virginia Court
Nov 2, 2016 | Mesh Medical Device Newsdesk
Judge Joseph Goodwin who is overseeing more than 97,000 defective product cases in his federal court in Charleston, had predicted neither side would like his future rulings if they did not make some effort to settle outstanding transvaginal mesh cases. -
New Developments In The Missouri Removal Wars
Nov 2, 2016 | Law 360
By Richard Dean
In recent verdicts, St. Louis courts are enhancing their reputation as a problematic jurisdiction for defendants.
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Oldest J&J Pelvic Mesh Cases Readied for Trial in West Virginia Court
Nov 2, 2016 | Mesh Medical Device Newsdesk
Mesh Medical Device News Desk, November 2, 2016 ~ Judge Joseph Goodwin who is overseeing more than 97,000 defective product cases in his federal court in Charleston, had predicted neither side would like his future rulings if they did not make some effort to settle outstanding transvaginal mesh cases.
Judge Goodwin is making good on his word.
Four hundred of the oldest cases filed against Johnson & Johnson and its subsidiary Ethicon are being readied for trial in federal court in West Virginia.
They are called Wave 4 cases and Judge Goodwin, who is overseeing these cases, is settings schedules to have these cases readied for trial sometime next year. In a number of pretrial orders (PTO) he has set deadlines for Fact Sheets, Discovery, Expert Motions, Interrogatories, Deposition etc.
All should be completed by May 4, 2017.
Judge Joseph Goodwin was assigned multidistrict litigation for transvaginal mesh cases in January 2012. the thousand or so cases has now grown to 97,3000 with Ethicon facing 35,924 on November first, more than any of the six other manufacturers. Judge Goodwin had become frustrated with the slow pace of litigation and has told both sides to get serious about settlements.
In February 2015, he predicted a “rocky path” if settlements were not forthcoming. See a background story here.
Both sides are keeping a low profile on settlements but Boston Scientific and J&J ( Ethicon) are slowest to come to the table and offer mesh injured women some settlement dollars.
Attorneys for both sides are being told to use the discovery that has already been generated for the number of Ethicon products that have already been the subject of product liability trials including, TVT, TVT-O, TVT-Secur, Abbrevo, among others.
Each side is limited to no more than five experts per case, exclusive of treating physicians. A deposition can include the plaintiff’s friends and family members as well as expert witnesses that will be used at trial. Interrogatory questions posed to each side are limited to 10 as well as 10 requests for admission per plaintiff.
Future status conference will set hearing for Daubert motions, that is a motion that limits the presentation of an expert on the basis that he or she is not an expert in their field. See Daubert Motion here.
Motions to seal confidential documents will be heard on or before February 9, 2017. Discussions on venue should be submitted to the court by that same date. Cases could be transferred to the federal district court as an alternative unless they remain in the federal court in Charleston, WV.
Judge Goodwin will set the trial date. This order was entered into the court October 25, 2016.
LEARN MORE:
PTO #243 Wave 4 cases J&J, Now facing scheduling deadlines, October 25, 2016.
Pretrial Order #238 severs the husband’s complaints without prejudice, meaning they can be filed again.
Pretrial order #240, October 11, 2016, directs those case still pending against J&J to provide the following on or before November 14, 2016. Proof of product identification, operative reports, including revisions and removals, and/or a certificate to Ethicon confirming thee documents have been previously provided to Ethicon. That information will go to Butler Snow the law firm representing Ethicon.
PTO #239 gives deadlines for responses and replies to Daubert motions for Wave 3 cases.
http://www.meshmedicaldevicenewsdesk.com/oldest-jj-pelvic-mesh-cases-readied-trial-west-virginia-court/
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New Developments In The Missouri Removal Wars
Nov 2, 2016 | Law 360
By Richard Dean
Law360, New York (November 2, 2016, 6:46 PM EDT) -In recent verdicts, St. Louis courts are enhancing their reputation as a problematic jurisdiction for defendants. Not surprisingly, removal and remand issues dominate the early stages of many filings. The classic case is the multi-plaintiff case with two or three plaintiffs from Missouri joining with multiple plaintiffs from out of state who allege piggyback jurisdiction on the backs of the three Missouri plaintiffs.
The courts in the Eastern District of Missouri have not been hospitable to removal of such cases. They have often refused to consider a personal jurisdiction attack on out-of-state diversity destroying plaintiffs, concluding they have no subject matter jurisdiction.They reason that subject matter jurisdiction is an “easy” question which they will decide first under Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999). See, e.g., Nickerson v. Janssen Pharmaceuticals, Inc. No.4:15CV1762, 2016 WL 3030241 (E.D. Mo. 2016); Morgan v. Janseen Pharmaceuticals, Inc., No. 4:14CV1346, 2014 WL 6678959 (E.D. Mo. 2014); Butler v. Ortho-McNeil-Janssen Pharms., Inc., No. 4:14/cv1485, 2014 WL 502583 (E.D. Mo. 2014).
Of course, subject matter jurisdiction actually implicates fraudulent joinder issues, which are more complex than personal jurisdiction. See, e.g., Torres v. Johnson & Johnson, No. 2:14-cv-29741, 2015 WL 4888749, at *3 (S.D.W.Va. Aug. 17, 2015) (mesh MDL) (“Therefore, following Ruhrgas, I FIND the question of personal jurisdiction here to be straightforward, whereas the issue of subject matter jurisdiction raises difficult and novel questions of federal procedural law. Consequently, I address personal jurisdiction first.”) (emphasis in original); In re Testosterone Replacement Therapy Prods. Liab. Litig., No. 14 C 1749, 2016 WL 640520, at *3 (N.D. Ill. Feb. 18, 2016) (electing to address the “more straightforward” personal jurisdiction rather than accept plaintiffs’ “oversimplifie[d]” argument that “subject matter jurisdiction ... can be confined to a simple review of the named parties’ citizenship.”); In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-md-2657, 2016 WL 2349105, at *2 (D. Mass. May 4, 2016) (“In this case, considerations of judicial economy strongly suggest resolving the issue of personal jurisdiction ahead of subject-matter jurisdiction. Resolution of the question of subject-matter jurisdiction necessarily involves an assessment of GSK’s contention that the three non-Missouri plaintiffs were ... fraudulently joined. ...”).
But two recent decisions governed by Missouri law take a different view from the Nickerson line of cases on which question is easier. The first is Addelson v. Sanofi, S.A., No. 4:16-CV-01277, 2016 WL 6216124 ( E.D. Mo. Oct. 25, 2016). This was a claim where there were only two plaintiffs — one from Missouri and one from New Jersey, whose presence destroyed diversity jurisdiction.
Defendants argued that there was no personal jurisdiction as to the New Jersey plaintiff, and that plaintiff’s claim should be dismissed before the court ruled on the pending remand motion. The District Court agreed. It found the personal jurisdiction issue to be more “straightforward,” relying on In re Testosterone Replacement Therapy Prods. Liab. Coordinated Pretrial Proceedings, 164 F. Supp.3d 1040, 1045-46 (N.D. Ill. 2016).
On the merits, the court concluded that there was no general jurisdiction under Daimler AG v. Bauman, 134 S.Ct. 746 (2014). And it found no specific jurisdiction because the New Jersey plaintiff had not alleged any facts which connected her claims with defendants’ Missouri contacts.
It specifically rejected piggyback jurisdiction — that the out-of-state plaintiff could establish specific jurisdiction on the theory her claims were related to those of the in-state plaintiff. The most significant part of the opinion appears in Footnote 3 where the court noted prior decisions of the Eastern District of Missouri permitting piggyback jurisdiction to establish specific jurisdiction:Two decisions from the Eastern District of Missouri have mentioned the issue of personal jurisdiction over out-of-state plaintiffs’ claims in addressing motions to remand. See Gracey v. Janssen Pharm., Inc., No. 4:15-CV-407 CEJ, 2015 WL 2066242 at *3 (E.D. Mo. May 4, 2015); Bradshaw v. Mentor Worldwide, LLC, 4:15-CV-332 SNLJ, 2015 WL 3545192 at *2 (E.D. Mo. Jun. 4, 2015). The opinion of the Northern District of Illinois, and the opinions of the First, Third, and Fifth Circuit Courts of Appeals are helpful in reaching the court’s conclusions, here. Supplemental specific personal jurisdiction does not exist; personal jurisdiction must exist separately for each claim. See In re Testosterone Replacement Therapy Prods. Liab., 164 F. Supp. 3d at 1048; Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275, n.6 (5th Cir. 2006); Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001); Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 289 (1st Cir. 1999).
This is a polite way of saying that piggyback jurisdiction does not exist and that prior Eastern District of Missouri cases on this issue were not properly decided. Addelson did not quote the language from In Re Testosterone but it is powerful on the underlying due process issue at stake here:
Under the theory plaintiffs propose, the alleged sale and promotion of AndroGel within Missouri, which allegedly caused a Missouri plaintiff’s injury, would subject defendants to general personal jurisdiction in Missouri for claims brought by any plaintiff who allegedly suffered injury by purchasing and using AndroGel anywhere in the country. Such a result would be plainly contrary to “traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154. See, e.g., Keeley v. Pfizer Inc., No. 4:15CV00583 ERW, 2015 WL 3999488, at *3 (E.D.Mo. July 1, 2015). In this case, such a result would be particularly at odds with the rationale underlying the requirement that a defendant have minimum contacts with the forum state. One purpose of that requirement is to “protect[ ] the defendant against the burdens of litigating in a distant or inconvenient forum.” World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). That purpose would be frustrated in this case if a Missouri court were to have personal jurisdiction over Bernaix’s claims. In Re Testosterone, 164 F.Supp.3d at 1049.
The second decision is In Re Bard IVC Filter Products Liability Litigation, No. CV-1602442, 2016 WL 6393595 (D. Ariz. Oct. 28, 2016). In this case an MDL court, applying Missouri law, rejected a motion to remand in a decision consistent with Addelson. In Bard, eight unrelated plaintiffs, none from Missouri, sued in the 22nd Judicial District of Missouri. One of the plaintiffs was an Arizona resident, as was one of the defendants.
The case was removed to federal court in Missouri and transferred to the MDL where plaintiffs moved to remand based on lack of diversity. The court found that the personal jurisdiction issue was easier. The Bard Court cited Testosterone and noted that “[d]efendants’ fraudulent joinder argument raises complicated issues on which there is no controlling Eighth Circuit precedent. …”
It went on to analyze personal jurisdiction. It first found no general jurisdiction over defendants in Missouri since they were neither incorporated or had their principal place of business there. Daimler AG v. Bauman, 134 S.Ct. 746 2014). It also found no specific jurisdiction since plaintiffs could not show their injuries arose out of defendants’ conduct in Missouri. Indeed, they received their filters and medical care in other states.
Testosterone was the key case relied upon on the Ruhrgas choice of jurisdiction issue in both of these cases.. And it was also the key decision relied upon on the issue of specific jurisdiction in Addelson. These are significant new decisions in the removal wars in Missouri.
—By Richard Dean, Tucker Ellis LLP
Richard Dean is a partner in Tucker Ellis LLP’s Cleveland office, practicing primarily in the area of product liability litigation for pharmaceutical companies.http://www.law360.com/articles/858937/new-developments-in-the-missouri-removal-wars-
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