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Ethicon Media Monitoring 10/9/2017
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Johnson & Johnson vaginal mesh presentation featured lingerie-clad women, court told
Oct 9, 2017 | The Guardian
By Christopher Knaus
A senior Johnson & Johnson executive included inappropriate jokes about pictures of scantily clad women in a presentation on the company’s controversial transvaginal mesh implants, a court has heard. -
Texas Justices Tackle 11th Circ.'s Discovery Rule Question
Oct 6, 2017 | Law 360
By Jess Krochtengel
The Texas Supreme Court on Friday agreed to review a certified question from the Eleventh Circuit tied to when the clock begins to run on a personal injury claim stemming from an allegedly defective product, in a Johnson & Johnson unit pelvic mesh suit. -
Filings Fly as Xarelto Mass Tort Prepares for Trial
Oct 6, 2017 | The Legal Intelligencer
By Max Mitchell
The judge overseeing the Xarelto mass tort in Philadelphia is considering a flurry of motions and responses that are expected to shape the state court litigation as it is gearing up for next month’s bellwether trial.
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Johnson & Johnson vaginal mesh presentation featured lingerie-clad women, court told
Oct 9, 2017 | The Guardian
By Christopher Knaus
Executive jokingly included picture of the crotch area of a woman in presentation about mesh implants
A senior Johnson & Johnson executive included inappropriate jokes about pictures of scantily clad women in a presentation on the company’s controversial transvaginal mesh implants, a court has heard.
Piet Hinoul, a vice-president of J&J’s product development arm, Ethicon, was speaking at a transvaginal mesh meeting in France in March 2009, discussing the devices and the response they produced in women’s bodies.
The two companies are facing a class action in Australia, launched by Shine Lawyers, which alleges the implants’ flaws caused lasting and debilitating pain for thousands of women worldwide.
Hinoul’s presentation concluded with two slides showing revealing pictures of women in underwear, who were not mesh patients.
One pictured the crotch area of a woman, and included the caption: “But, less is more! We recommend dry cleaning, this bikini can shrink with wash [sic].”
Another slide featured a model in lingerie, with the caption: “The [transvaginal mesh] group already knew: a mesh gives better support.”
Hinoul was asked about the slides last week in the federal court of Australia, where Ethicon and J&J are facing a class action involving more than 700 women, who say the implants have ruined their lives.
“It was an inappropriate comment. It was a play on words on a ‘better mesh for a better support’,” he said, referring to the picture of the model in lingerie.
“It was an inappropriate joke.”
Asked to explain the dry cleaning caption, Hinoul replied: “We recommend dry cleaning, could lead – I can’t ... I don’t know,” he said.
The judge, justice Anna Katzmann, interjected, asking Hinoul: “Just a moment, you presented these slides?”
The barrister Tony Bannon SC, who is representing Australian mesh patients, asked Hinoul: “But is this the way Ethicon or you treated these issues, by putting in images like slides 35 and 36? Is there an explanation of it?”
Hinoul replied: “I agree, it was an inappropriate comment.”
Bannon pressed on: “But not a reflection on any attitude you have to women who suffer problems from these [devices]?”
Hinoul: “No, not at all.”
Bannon then asked whether the court could expect to see any similar remarks during the rest of the hearing.
Hinoul replied: “At times, I have had moments where I have made bad jokes, but they are very few and they certainly don’t represent how I feel about these patients and how we treat them.”
The case, and similar actions in the United States and the UK, have cast light on the way some within the medical profession treat women.
Patients have spoken of presenting to doctors in severe pain, only to have their concerns about the implants dismissed or disbelieved.
Earlier in the class action, a series of emails revealed French gyneacologists joked about telling their patients to try anal intercourse as a solution to the painful sex associated with mesh complications.
“It is no less true that sodomy could be a good alternative!” one doctor wrote.
Another doctor made bizarre jokes about the challenge he faced in raising the matter with patients.
“I said to myself, there you go, for your next prolapse [patient], you talk to her about orgasms. OK! But also about fellatio, sodomy, the clitoris with or without G-spot etc,” he wrote.
“I am sure of one thing: that I would very quickly be treated like some kind of sex maniac (which, perhaps, I am) or a pervert, or an unhealthily curious person.”
J&J’s pelvic mesh and tape implants were used to treat stress urinary incontinence and pelvic organ prolapse, common complications of childbirth.
In many cases, the operations have been successful. But for hundreds in Australia, and many more across the world, the mesh implants have caused life-altering pain.
The class action alleges J&J failed to conduct rigorous testing of the devices. The risks were downplayed to surgeons and patients, it alleges.
The company is also accused of aggressively marketing to doctors, pitching the devices as a fast and cheap option that would boost their profits.
https://www.theguardian.com/australia-news/2017/oct/09/johnson-johnson-vaginal-mesh-presentation-featured-lingerie-clad-women-court-told
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Texas Justices Tackle 11th Circ.'s Discovery Rule Question
Oct 6, 2017 | Law 360
By Jess Krochtengel
Law360, Dallas (October 6, 2017, 5:25 PM EDT) -- The Texas Supreme Court on Friday agreed to review a certified question from the Eleventh Circuit tied to when the clock begins to run on a personal injury claim stemming from an allegedly defective product, in a Johnson & Johnson unit pelvic mesh suit.
A briefing schedule hasn’t yet been released and no date has been set yet for oral argument in the case, in which J&J unit Mentor Worldwide LLC is accused of making a defective suburethral mesh sling product called ObTape Transobturator Tape that allegedly caused pain and other negative side effects for Texas resident Ann Bergin.
The Eleventh Circuit on Sept. 20 asked the Texas justices to weigh in on whether the state’s “discovery rule” means 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.
Leigh O’Dell of Beasley Allen Crow Methvin Portis & Miles PC, an attorney for Bergin, told Law360 Friday the plaintiffs didn’t think it was necessary to certify the question.
“We think the current state of the Texas law supports a finding that in order for the statute of limitations to begin to run, a plaintiff must not only have an injury but also information that would put them on notice of the wrongdoing, i.e., that the product was defective or that the manufacturer failed to adequately warn of the risk,” O’Dell said.
In Bergin’s case, 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 and granted Mentor a quick win.
But Bergin argued that’s incorrect under Texas law, and contends the clock only begins to run on a claim when both the injury and its “negligent cause” have been identified.
The Eleventh Circuit said Georgia district courts, the Fifth Circuit and the Texas Supreme Court have struggled to reach a consensus on the appropriate requirements for accrual of a claim, at times contradicting their own precedent, and asked the Texas justices to clarify the issue.
The Bergin case stems from her 2005 implant of Mentor’s ObTape to resolve her urinary incontinence. She alleges she experienced pain and other negative side effects in the months after getting the implant, that her doctor found part of the implant was exposed and removed that section and that only after another surgery in September 2006 did he extract 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.
Mentor argued the countdown began when her doctor first linked her symptoms to the sling in 2006. But Bergin maintains the clock started in 2013, when she discovered that the product was defective.
Johnson & Johnson and counsel for Mentor did not immediately respond to a request for comment Friday.
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.
--Additional reporting by Nicole Narea. Editing by Joe Phalon.https://www.law360.com/appellate/articles/972208
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Filings Fly as Xarelto Mass Tort Prepares for Trial
Oct 6, 2017 | The Legal Intelligencer
By Max Mitchell
The judge overseeing the Xarelto mass tort in Philadelphia is considering a flurry of motions and responses that are expected to shape the state court litigation as it is gearing up for next month’s bellwether trial.
Philadelphia Court of Common Pleas Judge Arnold New has been assigned a series of summary judgment motions on several issues, from whether punitive damages should be allowed into the case, to whether the plaintiffs claims are pre-empted by federal law. Several motions disputing which experts should be allowed to testify about what topics are pending in the court as well.
The first bellwether case, Hartman v. Bayer, which is set to hit trial Nov. 6, and a central issue in that case is whether the court should allow punitive damages.
Last month, Bayer Corp., which along with Janssen Pharmaceuticals Inc., is a leading defendant in the litigation, said the court should apply either New Jersey or German law to the case, which would mean the plaintiff, Lynn Hartman, would not be able to seek punitive damages.
However, in a response filed Oct. 2 by Levin Sedran & Berman attorney Michael Weinkowitz, counsel for Hartman said Indiana law applies to the case, given that Hartman is a Hoosier State resident. Likening the situation to creating “a Frankenstein monster,” the motion said Indiana law does not allow parties to apply laws from different states to different aspects of the litigation. The motion also noted that the Pennsylvania Superior Court is currently reviewing the same punitive damages issue in a case stemming from the Risperdal mass tort program, which is also pending in Philadelphia.
If “punitive damages are stricken, and the Superior Court then reverses in Risperdal (a plausible possibility), then the parties potentially would need to conduct a new trial,” the reply said. “On the other hand, there would be virtually no impact if defendants’ motion is denied.”
Other recent filings from the plaintiffs specifically dealing with which experts should be allowed to testify at trial also made reference to Risperdal, as well as the pelvic mesh mass tort. Both mass torts have active dockets in Philadelphia’s Complex Litigation Center.
The defendants are trying to block former U.S. Food and Drug Administration Commissioner David Kessler and Dr. Suzanne Parisian from testifying at trial. Kessler has been a key witness for the plaintiffs in the Risperdal mass tort, and Parisian has testified for plaintiffs in the pelvic mesh mass tort.
However, according to the plaintiffs’ latest filings in the Xarelto litigation, the court rejected similar attempts to have Kessler and Parisian blocked from testifying in the other mass tort programs.
“Defendants cannot claim with any seriousness that they lacked knowledge of this court’s ruling in Risperdal. Not only is it published on Westlaw but Janssen is a defendant in both the Xarelto and Risperdal mass torts and is being defended by the same firm in both litigations: Drinker Biddle & Reath, LLP,” the plaintiffs said in a footnote in the reply.
Although the plaintiffs made numerous filings in early October, the defendants are keeping the court busy with filings of their own.
Last month, the plaintiffs filed a motion seeking to bar experts from testifying that attorney advertising about the dangers of the drug can cause an increase in injuries. In response, Janssen argued that, since the plaintiffs are likely going to bring up issues about marketing the drug, it should be able to raise questions about advertisements for the litigation.
“Given the volume spent on attorney advertising, it is important and only fair for the jury to know that Janssen’s was not the only voice in the media,” the motion, filed Oct. 2 by Drinker Biddle & Reath attorney David Abernethy, said. “Further, the jury should hear the effect that these advertisements have on the practice of medicine.”
http://www.thelegalintelligencer.com/id=1202799868156/Filings-Fly-as-Xarelto-Mass-Tort-Prepares-for-Trial?mcode=1202617075166&curindex=0
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