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Ethicon Media Monitoring 6/8/2017
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Plaintiffs Bar Perspective: Motley Rice's Donald Migliori
Jun 7, 2017 | Law 360
By Donald A. Migliori
... Migliori holds leadership roles in a number of MDLs, including negotiating on behalf of tens of thousands of women allegedly harmed by pelvic mesh/sling products and serving as co-liaison counsel in the N.J. -
Is Huskey Pelvic Mesh Case Going to the Supremes?
Jun 7, 2017 | Mesh Medical Device Newsdesk
The pelvic mesh case of Huskey v. Ethicon has been in the courts since 2012. After she won a defective product case before a jury in 2014 and was awarded $3.27 million, J&J appealed and lost.
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Plaintiffs Bar Perspective: Motley Rice's Donald Migliori
Jun 7, 2017 | Law 360
By Donald A. Migliori
Donald A. Migliori, a member at Motley Rice LLC in Mount Pleasant, South Carolina, is a multifaceted litigator who can navigate both the courtroom and the negotiating table. He represents victims of defective medical devices and drugs, occupational diseases, terrorism, aviation disasters, antitrust, and securities and consumer fraud in mass torts, and other cutting-edge litigation.
Migliori holds leadership roles in a number of MDLs, including negotiating on behalf of tens of thousands of women allegedly harmed by pelvic mesh/sling products and serving as co-liaison counsel in the N.J. Bard pelvic mesh litigation. He is a member of the plaintiffs' steering committee for the In re Bard IVC Filters Products Liability Litigation, the Depuy® Orthopaedics Inc. ASR™, and the Pinnacle® Hip Implant MDLs. He also serves as co-lead plaintiffs counsel and liaison counsel in the Composix® Kugel® Mesh MDL, and as liaison counsel for the litigation consolidated in Rhode Island state court.
Migliori played a central role in the settlements of more than 50 cases of 9/11 aviation liability. He represented 9/11 families who opted out of the Victim Compensation Fund, and served as liaison counsel for all wrongful death and personal injury cases in the 9/11 aviation security litigation. Additionally, he is a lead attorney of the 9/11 Families United to Bankrupt Terrorism, a groundbreaking case designed to bankrupt the financiers of al Qaeda.
Q: What's the most rewarding aspect of working as a plaintiffs attorney?
A: I started my practice as a defense lawyer and after four years, I was ready to quit the law. Owning an Italian restaurant sounded more rewarding. But I have a love of the law. I just realized that I was on the wrong side of worker safety and public health issues in the profession. I started at Ness Motley during the height of the attorneys general tobacco litigation in the 90s. The firm, now Motley Rice LLC, makes a difference in the lives of our clients and their families at a fundamental level — whether it be in tobacco, asbestos, aviation, terrorist financing, medical device, or other litigation. But at 30,000 feet, we are effectuating change in public health and safety. Hearing that a defective medical device or dangerous drug has been pulled from the market is gratifying, but getting the occasional fruitcake from the widow of an asbestos worker feels pretty awesome, too!
Q: What skill do you feel is most important for achieving success as a plaintiffs attorney?
A: Preparedness. My mentor and dear friend, Ron Motley, used to always brag, “I read everything!” And he did. Sometimes more than 1,000 pages in a day. What made him such an amazing trial lawyer is that he knew every fact, every document, every study and every word of testimony in a case. One of our experts told me after Ron left the trial war room one night, “Damn, Ron knows more about epidemiology than I do.” Probably true, but even if not, Ron held his own with every expert because he read everything. Know the facts. Know the science. Know the law. Never wing it: Judges hate it and juries don’t buy it.
Q: When it comes to trial strategy, what’s the biggest difference between representing a plaintiff and representing a defendant?
A: Defense lawyers are not burdened with the truth! No really. A plaintiff attorney who misstates the evidence is admonished or sanctioned. A defense attorney who misstates the evidence is just doing his or her job. Some of the best defense attorneys I have faced have argued completely contradictory facts in the same case with impunity.
One federal judge called it “good lawyering.” To overcome the imbalance of who owns the truth in trial, plaintiff attorneys need to know every detail of every piece of evidence on the case. They need to command the facts and control the story from voir dire to closing. Wait for the overzealous defense lawyer to sell a fact that is easily disproven. That’s how you get a jury to stop listening to the defense of the case.
Q: What advice would you offer to young lawyers interested in practicing as a plaintiffs attorney?
A: The best and worst quality of young plaintiff trial lawyers is their enthusiasm. So many have only one gear: overdrive. Nothing makes a “seasoned” trial lawyer like me happier than to have several young, ambitious and tireless attorneys working up a case. That energy and productivity always distinguishes the up-and-coming lawyers in the office and is infectious.
However, in a deposition or before a jury, that enthusiasm needs to be controlled. It often prevents listening to witnesses, observing the reactions of the jury, understanding how a judge is trying to shape your case, and ultimately how well you perform. For example, not every defense witness needs to be brow beaten. Make your points and move on, so when you do go into overdrive on a defense witness, the jurors understand the relative importance of that issue. I tell our young lawyers that there any many gears in a fine car … and a brake. Control your speed and know when to kick it in gear; you won’t crash and burn.
Q: What's one thing defense attorneys don't understand about practicing as a plaintiffs attorney?
A: I am most surprised by the fact that many defense lawyers do not get that we believe in this work and why lawsuits are good for America. It’s not just about compensation. It’s about “just compensation.” Our clients engage us for many reasons. Whether in the 9/11 aviation security litigation, vehicle defects, tobacco, medical device, or occupational exposure litigations, our clients demand answers, accountability, change in behavior and deterrence.
Compensation is always a part of the equation but cash is not “just compensation" unless it has purpose. Our cases cause manufacturers to redesign or remove dangerous products form the market; our cases cause start rates to decrease among teen smokers and quit rates to increase across all ages; and our cases cause corporations to reform how they govern themselves. Even a simple car accident can cause one driver to be more careful on the roads. We are in the business of Causes, Not Just Cases™.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.https://www.law360.com/articles/898105/plaintiffs-bar-perspective-motley-rice-s-donald-migliori
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Is Huskey Pelvic Mesh Case Going to the Supremes?
Jun 7, 2017 | Mesh Medical Device Newsdesk
Mesh Medical Device News Desk, June 7, 2017 ~ The pelvic mesh case of Huskey v. Ethicon has been in the courts since 2012.
After she won a defective product case before a jury in 2014 and was awarded $3.27 million, J&J appealed and lost.
Now Ethicon/ J&J wants the U.S. Supreme Court to hear the Huskey pelvic mesh case!
Is Huskey going to the Supremes?
The case of Jo Huskey v. Ethicon was the first bellwether pelvic mesh case naming Ethicon (Johnson & Johnson) to go to trial in multidistrict litigation in Charleston, WV., (Case no. 2:12-cv-05201).
It concluded September 5, 2014 with a $3.27 million jury verdict in compensatory damages and a decision the pelvic mesh was defective.
Ethicon then appealed the verdict, first to Judge Joseph Goodwin, who refused to throw out the verdict or allow for a new trial.
Then Ethicon took the case to the Fourth Circuit Court of Appeals which also handed Ethicon a defeat, rejecting Ethicon’s argument that Huskey failed to prove the TVT-Obturator sling was defective. Huskey et al. v. Ethicon Inc. et al., (Case number 15-2118).
The appeals court also affirmed a defective design because Huskey lawyers provided evidence that the heavyweight polypropylene (PP) mesh could have been made safer with a lighter weight mesh, less likely to cause scar plate formation, inflammation or incite a foreign body response.
TVT-O was cleared for marketing by the FDA in 2003 under the 510(k) clearance process and Tension-Free Vaginal Tape-Obturator uses a heavyweight polypropylene laser cut mesh to treat stress urinary incontinence. It remains on the market.
The appeals court also rejected the Ethicon argument about “comment k.” Comment K is a product liability doctrine that states some products are unavoidably unsafe such as vaccines, though not unreasonably dangerous, therefore manufacturers are shielded from liability. As an Illinois resident, a case by case determination is made as to the weight of that doctrine. The panel said Ethicon is not shielded by “comment k.”
Not to be deterred, Ethicon now wants to take it one step higher and has appealed to the U.S. Supreme Court.
In filing a writ of certiorari on May 23, Ethicon challenges the 4th Circuit U.S. Court of Appeals decision that the trial court rightly excluded testimony about Ethicon’s compliance with the FDA’s 510(k) clearance as a way of entering the market.
Ethicon said the trial court excluded all FDA-related evidence from trial.
If they had been allowed, Ethicon said it would have presented evidence that the TVT-O was cleared through the 5 10(k) process, and that the FDA concluded that SUI slings were safe and effective and clinical trials were not needed.
Ethicon also argued that Prolene suture makes up TVT-O and it has FDA approval/ clearance and a history of use.
Ethicon wants the Supreme Court to address the view that the 510(k) clearance is not a safety and effectiveness determination, “an error of law that only it can straighten out.
The request is signed by Charles C. Lifland of O”Melveny & Myers LLP.
In the Linda Gross case, Ethicon also attempted to have the Supreme Court address what it thought were outstanding issued. The High Court denied the Ethicon plea.
LEARN MORE:
Check out comment k doctrine. Huskey is from Illinois and state law determines if a specific product is covered by comment k doctrine. http://biotech.law.lsu.edu/Courses/drugsf02/comment_k.htm
MND, Huskey Case Affirmed by Appeals Court, February 2017
http://www.meshmedicaldevicenewsdesk.com/huskey-transvaginal-mesh-3-27-award-affirmed-appeals-court/MND, Closing Arguments in Huskey case
http://www.meshmedicaldevicenewsdesk.com/closing-argument-ed-wallace-in-huskey-v-ethicon/MND, Day 8 Wrapup Huskey v. Ethicon
http://www.meshmedicaldevicenewsdesk.com/day-8-huskey-v-ethicon-defense-wraps-closing-arguments-this-pm/MND, Day 4 Huskey takes the Stand
http://www.meshmedicaldevicenewsdesk.com/huskey-v-ethicon-day-4-huskey-takes-the-stand/(Use Search Bar on Page One to read all Huskey coverage)
http://www.meshmedicaldevicenewsdesk.com/jo-huskey-pelvic-mesh-case-going-supremes/
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