Ethicon Media Monitoring 01/20/2017

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

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1. Ethicon Trims Failure To Warn Claims In Mesh MDL

   Jan 20, 2017 | Law 360

   By Emily Field
   
   
   The West Virginia federal judge overseeing the multidistrict litigation over Johnson & Johnson's Ethicon Inc. surgical mesh dismissed failure to warn claims brought by more than a dozen women, saying that they hadn’t produced evidence to show other warnings...

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

Online Sources

1. Ethicon Trims Failure To Warn Claims In Mesh MDL

   Jan 20, 2017 | Law 360

   By Emily Field

   The West Virginia federal judge overseeing the multidistrict litigation over Johnson & Johnson's Ethicon Inc. surgical mesh dismissed failure to warn claims brought by more than a dozen women, saying that they hadn’t produced evidence to show other warnings would have changed their doctors’ decisions to perform surgery.  
   
   U.S. District Judge Joseph R. Goodwin issued 16 orders in the consolidation of several dozen cases in the MDL, which were brought by West Virginia women who were implanted with Ethicon’s Tension-free Vaginal 2 Tape to treat stress urinary incontinence. In the largely similar orders, the judge trimmed claims including fraud, breach of warranty and violation of consumer protection laws, in addition to the failure to warn claims.
   
   “The evidence shows that the plaintiff’s implanting physician did not rely on the TVT’s instructions for use and that any other warning would not have altered his decision to perform the surgery on the plaintiff,” Judge Goodwin wrote in one of the rulings.
   
   The judge also said that the women’s fraud-based and negligent misrepresentation claims were “simply repackaged” failure to warn claims.
   
   “But the plaintiffs have not identified any particular statements by Ethicon upon which they relied,” the judge said. “This inability to identify any particular fraudulent statements upon which they relied indicates that the gravamen of these claims is Ethicon’s failure to warn the plaintiffs about particular risks or dangers associated with the TVT.“
   
   In December, the judge ruled that consumers would have to prove a safer, alternative design to a defective product was feasible at time of its manufacture, reversing a previous decision.
   
   In August, the judge had ruled that there’s no West Virginia authority that would require a plaintiff to prove that a proposed safer design would have reduced an individual’s specific injuries.
   
   But the West Virginia Supreme Court of Appeals later published its pattern jury instructions for civil cases, including a section on product liability law in the state.
   
   For their part, the women argued that the pattern jury instructions were optional and not binding on courts, according to the opinion.
   
   Judge Goodwin agreed that the instructions weren’t binding in the way that a published opinion would be, but he noted that they were written by lawyers, judges and a West Virginia high court justice and adopted after extensive research, editing and committee review.
   
   “Thus, while the pattern jury instruction is certainly not binding precedent in the way a published opinion is, the persuasive force behind the PJI in helping me predict how the West Virginia Supreme Court would rule on this issue is substantial,” he said.
   
   The judge said he came to the “inescapable conclusion” that a plaintiff must prove there was a feasible alternative at the time the product was made that would have wiped out the risk that hurt her.
   
   The women claim the mesh caused problems including pain and injuries that required corrective surgeries. Because the surgeries all occurred in West Virginia, the suits are subject to the state's relevant laws, Judge Goodwin had said in an earlier ruling upholding his decision to consolidate the cases.
   
   The plaintiffs steering committee is represented by Renee Baggett and Bryan F. Aylstock of Aylstock Witkin Kreis & Overholtz PLLC and Thomas P. Cartmell and Jeffrey M. Kuntz of Wagstaff & Cartmell LLP.
   
   Ethicon and J&J are represented by David B. Thomas of Thomas Combs & Spann PLLC and Christy D. Jones of Butler Snow LLP.
   
   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.
   
   --Editing by Orlando Lorenzo.
   

   https://www.law360.com/articles/882683/ethicon-trims-failure-to-warn-claims-in-mesh-mdl
   

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