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Ethicon Media Monitoring 9/22/2017
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11th Circ. to Texas Supreme Court: When does clock start for personal injury lawsuits?
Sep 21, 2017 | Reuters
By Alison Frankel
On Wednesday, the 11th U.S. Circuit Court of Appeals certified an intriguing – and troublesome – question to the Texas Supreme Court: Does the state’s two-year statute of limitations for personal injury claims begin to run when plaintiffs are put on notice of a link between their injury and a particular product or when plaintiffs learn the product may be defective? The answer, as the 11th Circuit pointed out, will have important consequences in product liability litigation against drug and medical device makers. (The certification order was first reported by Howard Bashman at How Appealing.) -
11th Circ. Seeks Texas Justices' Input In J&J Mesh Suit
Sep 21, 2017 | Law360
By Nicole Narea
An Eleventh Circuit panel in a Johnson & Johnson mesh suit appeal asked Texas' high court for guidance Wednesday in determining whether the statute of limitations for a personal injury claim starts when a consumer connects their injury to a defective product or only when they also have reason to believe the manufacturer acted with ill intent or negligence. -
Ethicon, JNJ escape Acclarent whistleblower’s retaliation suit
Sep 21, 2017 | MassDevice
By Fink Densford
Allegations from a former Acclarent sales rep claiming she was fired for submitting a false claims report were kept alive this week by a Massachusetts magistrate judge, but the same allegations against Acclarent parent companies Johnson & Johnson (NYSE:JNJ) and Ethicon were thrown out, according to a Law360 report.
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11th Circ. to Texas Supreme Court: When does clock start for personal injury lawsuits?
Sep 21, 2017 | Reuters
By Alison Frankel
On Wednesday, the 11th U.S. Circuit Court of Appeals certified an intriguing – and troublesome – question to the Texas Supreme Court: Does the state’s two-year statute of limitations for personal injury claims begin to run when plaintiffs are put on notice of a link between their injury and a particular product or when plaintiffs learn the product may be defective? The answer, as the 11th Circuit pointed out, will have important consequences in product liability litigation against drug and medical device makers. (The certification order was first reported by Howard Bashman at How Appealing.)
The specifics of the case at the 11th Circuit show why. After Texas resident Ann Bergin was implanted with pelvic mesh manufactured by Mentor Worldwide in 2005, she experienced pain and bleeding. Bergin’s doctors performed two surgeries in 2006, removing pieces of mesh that had become infected. Bergin’s lead physician later said he probably told Bergin that her symptoms were related to the Mentor sling he had implanted. Bergin, according to the 11th Circuit, testified that she believed her body had rejected the implant and the surgeries were to resolve her particular complications.
In 2008, the Judicial Panel on Multidistrict Litigation consolidated pelvic mesh litigation against Mentor before U.S. District Judge Clay Land of Columbus, Georgia. Bergin, however, did not sue Mentor until 2013, after she saw a television advertisement warning that pelvic mesh may cause injuries.
Mentor’s lawyers at Tucker Ellis moved for summary judgment, arguing the clock began to run on Bergin’s claims once she had surgery to remove some pieces of mesh. Bergin’s lawyers at Beasley Allen Crow Methvin Portis & Miles countered that Bergin’s doctors never told her the Mentor mesh was itself defective or that Mentor may have been negligent. She only realized she might have a claim against Mentor in 2013 when she saw the television ad.
Judge Land sided with Mentor, holding that under the Texas “discovery rule,” Bergin was on notice once she had surgery to treat symptoms linked to the Mentor mesh. But as the 11th Circuit explained in its certification order on Tuesday, there’s considerable ambiguity in that discovery rule.
In fact, the appellate panel said, a different federal judge considering parallel facts in consolidated litigation against other manufacturers reached precisely the opposite conclusion as Judge Land. U.S. District Judge Joseph Goodwin of Charleston, West Virginia, who is presiding over tens of thousands of cases in multidistrict mesh litigation against Johnson & Johnson’s Ethicon, C.R. Bard, Boston Scientific and American Medical Systems has held that the statute of limitations for Texas claims begins to run when plaintiffs discover defendants’ allegedly wrongful conduct and its connection to their injury.
The 5th Circuit, which oversees Texas, is similarly inconsistent, according to the 11th Circuit panel in the Bergin case, Judges Adalberto Jordan, Julie Carnes and U.S. District Judge Harvey Schlesinger of Jacksonville, sitting by designation. (The 11th Circuit is hearing the Bergin case, even though it involves Texas law, because the Mentor MDL is being litigated in Georgia.) In one Dalkon Shield case from 1984, the 11th Circuit said, the 5th Circuit ruled that the statute of limitations began to run under Texas law when the plaintiff learned she had suffered an injury related to the device.
But in two other Dalkon Shield opinions issued in 1984, the 5th Circuit said that under the Texas discovery rule, the clock does not start ticking until plaintiffs learned their injuries were allegedly connected to the manufacturer’s negligence.
The 11th Circuit said the Texas Supreme Court’s precedent on the question isn’t definitive either. In 1999’s KPMG Peat Marwick v. Harrison County Housing Finance Corp, the state Supreme Court said the statute begins to run “when the plaintiffs knew or should have known of the wrongfully caused injury.” That language seems to back Mentor’s view of the Texas discovery rule, but the 11th Circuit said it can alternatively be read “to imply that some knowledge of wrongful conduct is required before a claim can accrue; that is, while awareness of a specific design defect in a defendant’s product is not required for accrual, some generalized awareness of the defendant’s wrongdoing is.” That interpretation is closer to what Bergin advocates.
The Texas Supreme Court has discretion to accept or deny certification from appellate courts.
I emailed the lawyers who argued this case before the 11th Circuit in May, Allison Hunnicutt of Beasley Allen and John Lewis of Tucker Ellis, but didn’t hear back.
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11th Circ. Seeks Texas Justices' Input In J&J Mesh Suit
Sep 21, 2017 | Law360
By Nicole Narea
An Eleventh Circuit panel in a Johnson & Johnson mesh suit appeal asked Texas' high court for guidance Wednesday in determining whether the statute of limitations for a personal injury claim starts when a consumer connects their injury to a defective product or only when they also have reason to believe the manufacturer acted with ill intent or negligence.
The question arises under Texas’ “discovery rule,” governing when a claim accrues, and stems from a case against Johnson & Johnson unit Mentor Worldwide LLC, the developer of an allegedly defective suburethral mesh sling product called ObTape Transobturator Tape that caused Texas resident Ann Bergin injury. A Georgia federal court had ruled that the discovery rule’s statute of limitations period begins when the consumer identifies a product that caused them injury, granting Mentor a quick win.
“Because the resolution of this appeal, and potentially many other cases involved in pending multi-district actions, turns on a material, unsettled state-law question, we respectfully seek the assistance and guidance of the Texas Supreme Court in answering this question,” the appeals court’s certification to the Texas high court states.
Bergin received Mentor’s ObTape implant to resolve her urinary incontinence in September 2005, but experienced pain among other negative side effects in the months thereafter. Her doctor found that part of the implant was exposed and removed that section. It was only after another surgery in September 2006, however, that he extracted the mesh material that likely led to the side effects.
In May 2013, Bergin sued Mentor in Georgia federal court, claiming the company may have acted negligently in producing a defective sling. But Mentor countered that she could no longer bring her claims because she had waited too long under Texas law, which designates a two-year statute of limitations for personal injury claims. The countdown began when her doctor first linked her symptoms to the sling in 2006, Mentor argued, while she maintained that it instead started in 2013, when she discovered that the product was defective.
The district court agreed with Mentor, granting summary judgment in its favor.
On appeal before the Eleventh Circuit, Bergin argued that the district court misinterpreted the Texas discovery rule, asserting that accrual occurs when both the injury and its “negligent cause” have been identified.
The appeals court pointed out that Georgia district courts, the Fifth Circuit and the Texas Supreme Court have struggled to reach a consensus on the appropriate requirements for accrual, at times contradicting their own precedent.
“Federal courts have ruled inconsistently in deciding whether a plaintiff’s claim accrues only when the plaintiff is placed on reasonable notice that the manufacturer of a product has acted negligently or whether instead accrual can occur earlier, when the plaintiff is merely placed on notice of a causal connection between use of the product and the injury, regardless of any wrongdoing by the manufacturer,” the appeals court’s certification to the Texas Supreme Court states. “This present litigation is a prime example of that inconsistency.”
The panel cites more examples from the Fifth Circuit, including a 1984 case in which the plaintiff sued the manufacturer of an intrauterine device that caused her injury after she saw a TV spot claiming that it had been negligent, but the court rejected her argument on the basis that her claim accrued at the time the device was inserted.
In another case from the same year, however, a plaintiff who contracted a pelvic infection following the insertion of an IUD in 1973 sued the manufacturer eight years later after reading a newspaper article indicating that it may have been negligent and the court allowed her claim to go through, according to the appeals court’s certification.
U.S. Circuit Judges Adalberto Jordan and Julie Carnes and, by designation, U.S. District Judge Harvey Schlesinger sat on the panel for the Eleventh Circuit.
Counsel for the parties did not immediately respond to requests for comment Thursday.
Bergin is represented by Andy D. Birchfield Jr., Wesley Chadwick Cook, Michael J. Crow, Frederick Bryan Darley III, Kendall C. Dunson, M. Allison Hunnicutt and Patricia Leigh O'Dell of Beasley Allen Crow Methvin Portis & Miles PC.
Mentor is represented by John Q. Lewis, Dustin Bradley Rawlin and Benjamin Creighton Sasse of Tucker Ellis LLP.
The case is Ann Marie Bergin v. Mentor Worldwide LLC et al., case number 16-14364 in the U.S. Court of Appeals for the Eleventh Circuit. -
Ethicon, JNJ escape Acclarent whistleblower’s retaliation suit
Sep 21, 2017 | MassDevice
By Fink Densford
Allegations from a former Acclarent sales rep claiming she was fired for submitting a false claims report were kept alive this week by a Massachusetts magistrate judge, but the same allegations against Acclarent parent companies Johnson & Johnson (NYSE:JNJ) and Ethicon were thrown out, according to a Law360 report.
The former sales rep Melanie Lokosky claimed that Acclarent falsely reported functionality of a spacer device, claiming it was designed to deliver salt water to win regulatory approval. However, after winning approval, the rep claims the company marketed the device to deliver a steroid and had never intended it as a delivery device for salt water, according to the report.
Judge Donald Cabell said Lokosky’s allegations that Acclarent retaliated against her for questioning the sales of the Relieva Stratus MicroFlow Spacer for off label use were sufficient, but determined that J&J and Ethicon, which bought Acclarent in 2009, were not involved and not liable, according to Law360.
Acclarent sought to dismiss the suit in April, claiming that the off-label promotion complaint was not connected to the false claims complaint, but Lokosky had reportedly voiced her concerns about the off-label use in front of in-house regulatory personnel at a 2010 conference.
The court determined Lokosky had provided adequate evidence for a link between her questioning the off-label use and her later termination, Law360reports.
Earlier this month, J&J’s Ethicon was hit with a $57.1 million verdict in a pelvic mesh case out of Pennsylvania, according to a report from The Inquirer.
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