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Ethicon Media Monitoring 6/22/17
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Will 'Bristol-Myers' Exclude Tort Actions From—or Draw Them to—Pa.?
Jun 21, 2017 | The Legal Intelligencer
By Max Mitchell
The U.S. Supreme Court's recent game-changing decision in Bristol-Myers Squibb v. Superior Court of California is widely seen as the beginning of the end for mass torts in several venues that have historically attracted large-scale litigation, including California and Missouri. -
U.S. Supreme Court Limits Liability Lawsuits
Jun 21, 2017 | Drugwatch
By Elaine Silvestrini
In a ruling that had an immediate effect on at least one unrelated trial, the U.S. Supreme Court has handed a significant victory to Bristol-Myers Squibb and other large corporations. -
Judge Settles Hundreds of Transvaginal Mesh Suits Naming C.R. Bard
Jun 21, 2017 | Mesh Medical Device Newsdesk
Judge Joseph Goodwin is overseeing more than 103,659 (as of today) product liability cases involving transvaginal mesh.
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Will 'Bristol-Myers' Exclude Tort Actions From—or Draw Them to—Pa.?
Jun 21, 2017 | The Legal Intelligencer
By Max Mitchell
The U.S. Supreme Court's recent game-changing decision in Bristol-Myers Squibb v. Superior Court of California is widely seen as the beginning of the end for mass torts in several venues that have historically attracted large-scale litigation, including California and Missouri.
But, for Pennsylvania—another state with significant mass tort dockets—the ruling is expected to be much more of a mixed bag, and, according to some, could instead lead to an uptick in suits against certain defendants.
On Monday, a majority of the Supreme Court determined that plaintiffs suing Bristol-Myers Squibb in California who were not California residents had failed to establish specific jurisdiction over the pharmaceutical giant, since there was no significant link between the claims and Bristol-Myers' conduct in California. The ruling, according to observers, makes clear that out-of-state plaintiffs can't sue companies in states where the defendants aren't considered to be "at home," or haven't conducted business directly linked to the claimed injury.
Even before the Supreme Court made its ruling, motions were filed in Pennsylvania and across the country seeking stays until the justices ruled on the issue. Since Bristol-Myers Squibb came down, it has already led to one mistrial, and attorneys in Pennsylvania said they are already beginning to file jurisdictional challenges based on the case.
According to James Beck, a products liability attorney with Reed Smith,the ruling means all of the cases in Philadelphia filed by out-of-state plaintiffs are subject to being tossed out of Pennsylvania state court. According to the latest statistics from Philadelphia's Complex Litigation Center, that means 33 percent of the asbestos cases and 74 percent of the pharmaceutical cases filed in 2016 could potentially be affected by the decision.
"Unless they are suing a Pennsylvania defendant—and there are some—every one of those cases, where a non-Pennsylvania plaintiff has come to Philadelphia to sue someone, is potentially implicated," Beck said.
However, plaintiffs attorneys say Pennsylvania's business consent laws and the fact that many pharmaceutical businesses have strong ties to the Philadelphia area put the Keystone State in a different situation than other venues that historically saw significant mass tort litigation.
"Janssen [the defendant in the Risperdal mass tort] is a Pennsylvania corporation. With Bayer, which is a Pennsylvania corporation, nothing changes. Merck, which has significant facilities here, under the right factual pattern, would be in Philadelphia. Ethicon, which is in the transvaginal mesh cases, purchased material from a Pennsylvania corporation, so nothing has changed," Kline & Specter attorney Thomas Kline, whose firm is handling cases in both the Risperdal and transvaginal mesh mass torts, said.
Attorneys agreed that the ruling will most dramatically impact mass tort programs in Illinois, Missouri and California, which is where hundreds of other Risperdal cases have been filed. Those courts, according to attorneys, were more favorable toward allowing in out-of-state claims. Attorneys noted that Missouri, for example, had allowed out-of-state plaintiffs to join their claims, or "tag along," with complaints filed by in-state plaintiffs. That practice is not allowed in Philadelphia.
Cases in those jurisdictions directly affected byBristol-Myers Squibb might see their cases transferred either to federal court, or venues deemed to be either, the company's home, or where the conduct occurred that was sufficiently linked to the injury.
That could mean Pennsylvania would see an increase in litigation against specific defendants.
"The Pennsylvania-incorporated product manufactures are going to get sued more here in Pennsylvania," Abby Sacunas, a partner in Cozen O'Connor's products liability practice, said.
Others agreed.
The decision will "send cases where the court believes they belong," Kline said. "A place where the Risperdal cases would belong would be Philadelphia."
http://www.thelegalintelligencer.com/id=1202790842324/Will-BristolMyers-Exclude-Tort-Actions-Fromor-Draw-Them-toPa
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U.S. Supreme Court Limits Liability Lawsuits
Jun 21, 2017 | Drugwatch
By Elaine Silvestrini
In a ruling that had an immediate effect on at least one unrelated trial, the U.S. Supreme Court has handed a significant victory to Bristol-Myers Squibb and other large corporations.
The nation’s highest court put limits on where lawsuits can be brought against corporations, restricting jurisdiction to the state in which the corporation is housed or the location where the alleged harm occurred.
The case has far-reaching implications and will likely change the face of mass-tort litigation and class actions in state courts, limiting the ability of injured plaintiffs to join together to sue corporations.
In the case before the court, 592 plaintiffs who sued Bristol-Myers Squibb in California claiming BMS misrepresented the risks of the drug Plavix will have their lawsuits dismissed. Only the 86 California residents who filed there will be allowed to move forward.
Within hours of the Supreme Court’s ruling, a judge in Missouri declared a mistrial in a trial involving two out-of-state plaintiffs and one Missouri plaintiff who sued Johnson & Johnson because their loved ones died after using talcum powder. They were subsequently diagnosed with ovarian cancer.
According to a video feed from Courtroom View Network, CVN.com, Circuit Judge Rex M. Burlison told jurors on June 20 that he ended the trial out of their presence the previous day. “I came to the conclusion that the best way to handle this case was to declare a mistrial,” the judge said. “I know you put two weeks in. (This is) frustrating for everyone, but that’s my decision, a call I had to make… The bottom line is that I’m going to dismiss you.”Ruling Called ‘Horrible to Judicial Economy’
Plaintiffs’ attorney Jim Onder was quoted in the St. Louis Post-Dispatch as saying the Supreme Court ruling is “horrible to judicial economy” in that it will slow the system down because cases can’t be consolidated and tried in one place. Still, he maintained there is potential argument to keep the remaining cases in St. Louis because Johnson & Johnson used a company with a local plant to package talc products.
One attorney, James Beck, wrote in a blog post that the Supreme Court’s ruling is “one of the most important mass tort/product liability decisions ever, because expansive notions of personal jurisdiction — that large companies can be sued by anyone anywhere — are behind the growth of ‘magnet jurisdictions’ … that attract litigation tourist plaintiffs from all over the country, suing companies from all over the country, without regard for whether any such defendant is incorporated or does business in the state.” Consequently, he added, “a lot of the litigation industry in California will go sliding into the sea.”
Beck wrote that other states viewed as favorable by plaintiff lawyers include Missouri, Illinois, Pennsylvania, New Jersey and New York.Will Multimillion-Dollar Talcum Verdicts Stand?
It was not immediately clear, but the 8-1 decision could upend four previous jury verdicts in talcum powder cases heard in St, Louis, all involving residents of states other than Missouri. In one case, a Virginia woman was awarded $110 million. Jurors also handed up verdicts of $70 million, $55 million and $72 million to be paid to women who were diagnosed with ovarian cancer after using talc. In cases in which the women died, their family members were to receive the awards.
Johnson & Johnson, which is headquartered in New Jersey, faces more than 1,000 similar lawsuits, many of them on the docket in Missouri.
The Supreme Court ruling could also have an immediate effect in other states where courts have been established to manage mass torts or complex litigation.
In Philadelphia, for example, courts are handling cases involving vaginal mesh, and the drugs Reglan and Risperdal. The Complex Litigation Center there was the first in the U.S. “designed for complex, multi-filed Mass Tort cases when it opened in 1992,” according to the court’s website. The site lists mass tort programs ranging from Accutane to Yaz.Justice Fears Restrictions on Injured Plaintiffs
Justice Sonia Sotomayor, the only dissenter in the Supreme Court Bristol-Myers Squibb case, said the ruling authored by Justice Samuel Alito will make it harder for injured people to sue large corporations.
“It will make it impossible to bring a nationwide mass action in state court against defendants who are ‘at home’ in different States,” she wrote. “And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary… The effect of the Court’s opinion today is to eliminate nationwide mass actions in any state other than those in which a defendant is ‘essentially at home.’”
The decision, she said, “hands one more tool to corporate defendants determined to prevent the aggregation of individual claims, and forces injured plaintiffs to bear the burden of bringing suit in what will often be far flung jurisdictions.”
The bottom line, she said, is that the ruling will curtail and, in some instances eliminate, the ability “to hold corporations fully accountable for their nationwide conduct.”Alito: Constitution Allows Jurisdiction Limits
Alito wrote that Bristol-Myers Squibb could be sued by groups of plaintiffs in New York, where the company is headquartered or in the states where the plaintiffs reside.
The decision overturned a ruling by the California Supreme Court that the cases could all be heard in the state because the claims of the nonresidents were similar to the claims of the California residents.
The U.S. Supreme Court ruled that the due process clause of the 14th Amendment to the U.S. Constitution limits the personal jurisdiction of state courts. Allowing the claims of nonresidents to be heard in California, where BMS does business but is not headquartered, would create too big a burden on the corporation, Alito wrote. But even if it was no inconvenience at all, the justice wrote, the Constitution places limits on states that prevent these cases involving out-of-state residents from being heard in California.
“The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the state and the nonresidents’ claims,” Alito wrote. “As noted, the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California — and allegedly sustained the same injuries as did the nonresidents — does not allow the State to assert specific jurisdiction over the nonresidents’ claims.”
The case drew attention from a variety of parties, including the Reporters Committee for Freedom of the Press and the Texas Association of Broadcasters, which submitted a joint brief in support of Bristol-Myers Squibb, citing concerns about libel lawsuits being brought in various jurisdictions.Trump Administration, Business Groups Welcome Ruling
Also supporting BMS was GlaxoSmithKline, the Trump administration, the U.S. and California chambers of commerce and various legal and corporate interest organizations. Some of these groups said allowing the California Supreme Court ruling to stand would encourage “forum shopping,” a term for when lawyers file lawsuits in the courts where they expect the most favorable decisions, regardless of the legitimacy of the jurisdiction.
Filing in support of the plaintiffs were the Asbestos Disease Awareness Organization, two groups of law professors, the Center for Auto Safety and other legal interest groups.
One of the briefs filed by law professors said overturning the California Supreme Court could have dramatic consequences for multi-state and nationwide class actions: “Except in those cases in which the claims of the named plaintiffs and the claims of every class member arose in the same state…the only available forum would be the defendant’s home state, regardless of whether considerations of fairness, justice, and more generally, reason, would demand otherwise.”
https://www.drugwatch.com/2017/06/21/supreme-court-limits-liability-lawsuits/
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Judge Settles Hundreds of Transvaginal Mesh Suits Naming C.R. Bard
Jun 21, 2017 | Mesh Medical Device Newsdesk
Mesh Medical Device News Desk, June 21, 2017 ~ Judge Joseph Goodwin is overseeing more than 103,659 (as of today) product liability cases involving transvaginal mesh.
Three hundred product liability cases naming C.R. Bard have been dismissed just since Monday.
Earlier this year Judge Goodwin told lawyers he would like to have the cases filed against seven mesh manufacturer resolved this year.
Just since Monday, Judge Goodwin made good on that promise, at least as far as Murray Hill, New Jersey mesh maker, C.R. Bard is concerned.
The judge has issued 20 orders moving nearly 300 pending cases against C.R. Bard toward resolution.
These appear to be cases represented by law firms that are not on the steering committees and may have a limited number of product liability cases naming Bard over its transvaginal mesh.
Once resolved, they are then taken off the trial docket, where as of today, there are 15,459 product liability cases filed against Bard (with 9,660 closed).
Bard has the fourth highest number of cases behind Ethicon, Boston Scientific, and AMS (American Medical Systems).
Look up cases using PACER in Bard 2:10-md-2187.
Filed since Monday, June 19 are:
· Document #4001 is an order which grants the motion to dismiss all claims, cross claims, counter claims and third party claims for 75 plaintiffs. These cases are now dismissed with prejudice, meaning they cannot ever be filed again.
The orders name as defendants both Bard and Tissue Science Laboratories Limited, Sofradim Production and Covidien LP, who have reportedly all agreed to a settlement model.
Sofradim Production SAS is the French biotechnology company affiliated with Covidien medical device maker headquartered in Dublin, Ireland. Sofradim manufactures implants used for hernias and weaves polymers to create mesh.
https://www.b2match.eu/h2020-health-Lyon2014/participants/37Tissue Science Laboratories is a privately held British medical device company, which is a division of Medtronic.
· Another order on the same date, #Bard 3996 , dismisses three cases with prejudice against Bard, filed by three law firms with one case each.
· In Document #Bard 4002, 133 plaintiffs agreed to settlement with Sofradim Production SAS, Tissue Science Laboratories, Covidien and C.R. Bard.
· Another Motion to Dismiss, Doc #4003, says defendants, including Sofradim Production SAS, Tissue Science Laboratories Limited, Covidien and CR Bard, have agreed to settle three claims, however, the claims which include Cook Medical will be transferred to that court.
· In Doc #4005, (see it #Bard 4005), Sofradim, Covidien, Tissue Science Labs and Bard, agreed to a settlement model for two plaintiffs.
The court will not conduct further proceedings on these two cases.
· Document #4004 dismisses one Bard case with prejudice provided she accepts the settlement by October 31, 20017. After that time if a settlement is not finalized the Court will have a hearing to determine the case’s future. See it here. #Bard 4004
In the meantime, it’s on the inactive docket.
· Document #4000, lists 33 plaintiffs, who along with defendants – Bard, Covidien, Tissue Science and Sofradim, have settled all claims and jointly move the court to dismiss Bard and Covidien as defendants.Other defendants, including Ethicon, will remain in these actions and plaintiffs will continue to prosecute these actions. Within 14 days of the motion, they are required to file an amended short form complaint against the remaining defendant, Ethicon and they will be transferred to the Ethicon MDL 2327.
· Document #Bard 3997 also dismisses the usual suspects but nine plaintiffs have an additional action against AMS and will continue with those claims and are required within fourteen days to file an amended short form complaint in the AMS (American Medical Systems) MDL 2325.
· Docket #3998, filed June 19, has the 21 plaintiffs dismissed with prejudice Sofradim, Tissue Science and Covidien, presumably because they have reached a settlement.
Often a law firm will represent to the court it has reached a settlement before the final resolution with its client. Clients still have the option to decline a settlement if they have not committed in writing to accept it.
· Doc #3999 is a joint motion filed June 19, 2017, to dismiss defendants with prejudice including Sofradim Production, Tissue Science Laboratories and Covidien as settlement has been reached. The parties move to dismiss with prejudice and terminate the cases from the docket of this MDL. Three plaintiffs are named.
· Doc #3995 joint motion to dismiss certain defendants with prejudice and plaintiffs’ motion to transfer MDLs, in this case Boston Scientific Corp, which remain in the action. After 14 days they must file a short form complaint in the BSC MDL 2187 that no longer include Bard and Covidien entities. Seven cases are included here.
Including June 19 are six proposed orders by Judge Goodwin.
· Docket #3994 involves one plaintiff represented by a smaller law firm saying Bard has agreed to a settlement with the plaintiff therefore it is unnecessary to conduct further proceedings or to keep the case on the active docket. Both parties have until September 30, 2017 to finalize a settlement and submit a dismissal order.
· Docket # 3993, gives both sides until December 31, 2017 to submit a settlement and dismissal order concerning one case. Again, it says both sides have agreed to a settlement model with regard to Bard.
· Doc #3992 is the same giving a deadline of on or before December 31, 2017 to finalize the settlement and submit a dismissal order for one case.
· Docket #3991 also gives until the end of the year for a settlement to be finalized for one case.
· Docket #3990, again until December 31, one case to settle.
· Docket #3989 is given until the end of the year to finalize a settlement and submit dismissal orders for one case.
The Friday before, June 16, there is a rash or orders dismissing cases from the C.R. Bard docket as well.
So far Bard has settled 149 cases which were dismissed in April, while 3,000 lawsuits were part of a 2015 settlement of $200 million.
Earlier this year, C.R. Bard removed its pelvic meshes from the market as it is in the process of being sold to Becton Dickinson for $24 billion.
Last November, Judge Goodwin asked both plaintiff and defendant sides to come up with 50 cases each to prepare for trial.
Donna Cisson’s $2 million verdict against Bard in 2013 was upheld by an appellate court a year ago.
During that trial, in an unusual move, Judge Goodwin noted that Bard attempted to hide its identity in purchasing raw polypropylene resin from the supplier.
“This secretive conduct in an effort to sidestep the MSDS warnings suggests reprehensible conduct, weighting against remittitur.”
The MSDS is the Material Safety Data Sheet which clearly says “Do not use this Phillips Sumika Polypropylene Company material in medical applications involving brief or temporary implantation in the human body or contact with internal body fluids or tissues unless the material has been provided directly from Phillips Sumika polypropylene Company under an agreement which expressly acknowledges the contemplated use.”
See the Mesh News Desk story here.
Christine Scott’s Bard pelvic mesh case also survived appeal and the company was on the hook for $3.6 million to the plaintiff resulting from her July 2012 trial in Bakersfield, California. ###
http://www.meshmedicaldevicenewsdesk.com/judge-settles-hundreds-transvaginal-mesh-suits-naming-c-r-bard/
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