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Ethicon Media Monitoring 1/12/2018
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Taboo busting. What is the vaginal mesh implant scandal? A guide to the issues
Jan 11, 2018 | Wisbech Standard
By Kelsey Dring
For more than two years the Cambs Times has helped catapult the vaginal mesh implant scandal into the national media arena. -
Putting The "Specific" Back In Specific Jurisdiction: The Importance Of Claim-By-Claim Jurisdictional Analysis In A Post-BMS Landscape
Jan 11, 2018 | Mondaq
By James Beck
... Finally, the Philadelphia Court of Common Pleas found jurisdiction over all but one of the 71 cases currently pending before it as part of Pennsylvania's pelvic mesh mass tort program.
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Taboo busting. What is the vaginal mesh implant scandal? A guide to the issues
Jan 11, 2018 | Wisbech Standard
By Kelsey Dring
For more than two years the Cambs Times has helped catapult the vaginal mesh implant scandal into the national media arena.
Called the biggest women’s health disaster since the morning sickness drug Thalidomide caused babies to be born with deformed limbs, we run a question and answer session to help explain what the Sling The Mesh campaign is about.
Former Wisbech Grammar School pupil, Kelsey Dring, a journalism student at Epsom University, takes up the reigns in a question and answer session.
Kelsey writes:
Dubbed as the biggest health scandal since thalidomide, Sling The Mesh is helping break down the taboo on using the word vagina and why it is okay to discuss intimate female health problems.
There are women’s rights campaigners, and then there are women’s rights campaigners like Kath Sansom.
A high board diving, grime-loving 50 year old, with a no nonsense approach to life, Kath is the voice behind Sling the Mesh, a political campaign which aims to ban vaginal mesh operations.
Since starting the campaign in 2015, Kath has spread the message of Sling the Mesh across the nation, with appearances on Jeremy Vine, Victoria Derbyshire, and regular features in The Guardian, Take a Break and everything in between.
After years of being silenced, Kath’s savvy use of social media has helped give mesh-injured women a voice, and they sure are using it now.
Q&A
• Starting at the beginning, for readers who may be unaware of what a vaginal mesh implant is, can you give us an overview of the procedure?
One in three women suffer from incontinence after childbirth and it can be mild, doing things like star jumps in an exercise class. For a majority of women, it’s on impact exercise. Physiotherapy can ease things for up to 80 per cent of women, but if that doesn’t work, you can have surgery with a mesh implant for prolapse, they’ll put in a patch which lifts everything up. For incontinence, it’s a tape sling, which holds up the bladder neck. Both are made from the same plastic mesh material, polypropylene, which is used for drinks bottles. The problem with this material is that it can shrink, twist, degrade or leak toxins. No amount of good surgery can account for an implant that can shrink inside the pelvic region. It causes injury to internal organs, nerves and muscles, and that’s why women are in so much pain.
• Around 7,000 women undergo the procedure each year, yet many women are unaware of its potentially life damaging effects. Why do you think awareness is so low?
The surgeons aren’t giving fully informed consent. When women go in saying I heard about the problems in the media, some surgeons will say ‘I don’t use the mesh in the media.’ There’s something called hospital coding, and in that, incontinence mesh is officially called ‘introduction of tension free vaginal tape,’ so it doesn’t use the word mesh. That’s why surgeons think they have the right to say they aren’t using the mesh in the media. Women believe them, and they have the operation.
• Why do you think in 2017 it is still considered taboo to talk about vaginal problems?
Historically women get embarrassed about stuff. This is our most private of parts, and I think that’s another reason why this issue has been kept under wraps for so long. But why? It is just taboo. This campaign is breaking the taboo on sexual health, on using the word vagina, on being aware of problems and it being okay to discuss them. What has overwhelmingly come out of all of this is the utter disrespect for women, the utter lack of listening to women. We all know if this much pain and devastation was going on in a simple operation for men, this would have stopped years ago.
• Why is it taking so long for government to respond to what has been dubbed as the biggest health scandal since thalidomide?
A big issue is that NHS accountants see this as a cheap fix - they want to preserve mesh because its quicker than traditional surgeries that take three hours and three nights in hospital. You can see a big difference in sums, but they’re just looking short term, they think quick fix. But long term, mesh injured women cost more because of painkillers, nerve blockers, antibiotics. Recently women sent me their monthly medication, and I added it up - one woman over 11 years had cost the NHS £50,000. It can range from anything from £70 to £300 a month, just for the medication cost of a mesh injured woman.
•Recently you held a virtual rally on social media by Tweeting 10 Downing Street, the Prime Minister and her health secretaries. Do you think this is the future of campaigning, after #slingthemesh trended on Twitter the night of the rally?
Whether you like it or not, social media is the way to campaign, definitely. You have to shame them into realizing it’s a problem, and the best way to do that is Twitter. You’ll get all sorts of people joining your campaign, that you wouldn’t even know you needed to reach out to, but it does. Social media is important in this country for getting people’s voiced heard - for corruption, for social change, for anything that’s wrong, you’ve got to get the media behind you.
• Aside from ending vaginal mesh implants, what are your goals for the future?
Seeing women empowered into action through Sling the Mesh has been incredible to watch. I want to continue that empowerment for women but move it into breaking taboos around domestic abuse. The insidious hard to prove kind. Specifically along the lines that you don’t have to be hit to be abused.
http://www.wisbechstandard.co.uk/news/kelsey-dring-vaginal-mesh-implant-scandal-sling-epsom-wisbech-grammar-1-5350259
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Jan 11, 2018 | Mondaq
By James Beck
Today's guest post comes to us courtesy of Dick Dean and Nick Janizeh, both of Tucker Ellis. They've been thinking (as have we all) about the ramifications of the BMS decision on personal jurisdiction, and have come up with some conclusions that we found interesting, and we hope that you do, too. As always, our guest posters are entitled to 100% of the credit (and any blame) for what follows.
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In Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) ("BMS") [ed. note – our post here], the United States Supreme Court concluded that specific jurisdiction must be premised on a defendant's in-state conduct giving rise to a plaintiff's alleged injury. The Court explained that plaintiffs therefore could not pursue their claims in a state in which they did not reside or in which they were not injured if a defendant conducted no activity in that state connected to the injury. That other in-state plaintiffs may be advancing similar claims as part of a coordinated proceeding did nothing to change this analysis.
BMS signaled the end of litigation tourism wherein non-resident plaintiffs could tack their claims onto another state's mass coordinated proceeding. Or so it seemed. Recently, a trio of decisions from state courts have distinguished BMS and permitted out-of-state plaintiffs who were not injured in the forum state to prosecute their claims in that forum. As explained below, the court in each case nevertheless found jurisdiction over non-resident defendants by pointing to a "connection" to the defendants' conduct within the forum state.
In the DePuy ASR Hip" Systems Cases, a California court permitted a Connecticut resident who was implanted with a hip replacement device in Connecticut, had the device removed in Connecticut, and received follow-up care in Connecticut to advance her claims (which included design, warning, and manufacturing defect) in California. DellaCamera v. DePuy Orthopaedics, Inc., No. CGC-11-509600, at 3 (Cal. Super. Ct. Nov. 1, 2017). Even given all these Connecticut connections, the court found specific jurisdiction as to DePuy (a non-California corporation) on the basis that the defendant had "collaborate[d]" with two California-resident doctors on the design of the hip implant. Id. at 5. The court found that this "distinguishe[d] the case from the situation in BMS, where the U.S. Supreme Court found that the nonresident defendant did not develop, manufacture, label, package, or create a marketing strategy for the drug in the forum state, and where it was not alleged that the nonresident defendant engaged in relevant acts together with the California resident defendant." Id. at 6-7.
A Missouri state court issued the second decision as part of the talcum-powder, ovarian-cancer litigation. Even after another talc case involving an out-of-state resident was thrown out of Missouri state court just a month prior for want of personal jurisdiction (Fox v. Johnson & Johnson, No. ED104580, 2017 WL 4629383, at *2-3 (Mo. Ct. App. Oct. 17, 2017) [ed. note – our post here], the court denied the non-resident defendants' motion to dismiss a Virginia plaintiff's claims and instead decided to preserve a $110.5 million jury verdict in favor the out-of-state plaintiff (see Slemp v. Johnson & Johnson, No. 1422-CC09326-02, at 11-12 (Mo. Cir. Ct. Nov. 29, 2017)). The defendants argued that there was no personal jurisdiction because the plaintiff purchased and used the products and developed cancer in Virginia, not Missouri. Id. at 3. But the court nevertheless found jurisdiction, stating that, "by contrast [to BMS], there is evidence [here] that Defendants' conduct giving rise to Plaintiffs' claims occurred in Missouri. Plaintiffs allege that Defendants engaged in relevant acts within the state of Missouri, including enlisting a Missouri company, PTI Union, LLC, to manufacture, mislabel, and package . . . the very products which caused injury to the Plaintiffs." Id. at 6-7. Put differently, the court found jurisdiction over the named defendants because of a contractual relationship they had with an in-state manufacturer who was not a named party in the case. See id.
Finally, the Philadelphia Court of Common Pleas found jurisdiction over all but one of the 71 cases currently pending before it as part of Pennsylvania's pelvic mesh mass tort program. See Order, In re: Pelvic Mesh Litig., No. 829, at 1 (Phila. Ct. Comm. Pleas Dec. 4, 2017); "Pa. Judge Affirms Jurisdiction On Out-Of-State Mesh Cases," Law360 (Dec. 5, 2017). The court issued a one-page order dismissing the lone Prolift +M case from the program because the Prolift +M product did not "touch" Pennsylvania in any way during its manufacturing process. By contrast, a Pennsylvania company had one—albeit small—role in the manufacturing process for the products at issue in the other 70 cases. Specifically, that company wove together filaments of mesh, which had been made in other states, and then sent the woven mesh out of state for further processing. Notably, however, that company had been dismissed from the litigation pursuant to the Biomaterials Access Assurance Act, 21 U.S.C. §§ 1601, et seq. before this jurisdictional challenge was advanced.
These three decisions are examples of state courts finding jurisdiction over non-resident plaintiffs' product liability claims so long as it can be shown that the product was somehow designed or manufactured in state. Moreover, the entity responsible for the design or manufacture—as was the case in the talc and mesh litigations—need not even be a named defendant. But the Supreme Court did not go that far. In BMS, the Supreme Court found that a contractual relationship between a non-resident drug manufacturer and an in-state named co-defendant that distributed the drug was insufficient to find specific jurisdiction over the out-of-state manufacturer. 137 S. Ct. at 1783.
Assuming there can be personal jurisdiction based on contractual relationships with third parties not named as defendants, there is a more basic flaw in these opinions. Just because there is specific jurisdiction over one claim (e.g., design defect), that is insufficient to find specific jurisdiction over all claims (e.g., warning claims, breach of warranty claims, and the laundry list of other claims that is usually appended to complaints against the pharmaceutical industry). Several federal circuits have adopted this claim-by-claim standard. See, e.g.,Remick v. Manfredy, 238 F.3d 248, 256-60 (3d Cir. 2001) (conducting specific-jurisdiction analysis as to each individual cause of action); Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) ("Personal jurisdiction must exist for each claim asserted against a defendant." (emphasis added)). So too have several state courts. See, e.g., Blume Law Firm PC v. Pierce, 741 N.W.2d 921, 925 (Minn. Ct. App. 2007) ("When multiple claims are raised, personal jurisdiction must be established for each claim."); Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013) ("[S]pecific jurisdiction requires us to analyze jurisdictional contacts on a claim-by-claim basis."). And it has even been applied in the products liability context. See, e.g., Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275 (5th Cir. 2006) ("[P]laintiff bringing multiple claims that arise out of different forum contacts must establish specific jurisdiction for each claim." (emphasis added)); see also id. (noting that plaintiff brought four claims—defective design, failure to warn, negligence, and negligence per se—and explaining that only the design claim arose out of defendant's contacts with the forum state, the other three did not); In re Testosterone Replacement Therapy Prods. Liab. Litig., 164 F. Supp. 3d 1040, 1048-49 (N.D. Ill. 2016) (citing Seiferth); Novy v. C.R. Bard, Inc., No. 16-cv-02853, 2016 WL 6393596, at *4-5 (D. Ariz. Oct. 28, 2016) ("Plaintiffs argue that out-of-state Plaintiffs 'do not have to separately establish personal jurisdiction for each claim as though they were in a vacuum.' . . . This Court does not agree.").
Admittedly, the three cases discussed in this post present unique examples and do not permit much wiggle room to evade the thrust of BMS—especially in the drug and device sphere (after all, in how many states is a drug designed or components of a device manufactured?). But they all fail to address well recognized due process considerations that were not in play in BMS. That is, specific jurisdiction must be considered on a claim-by-claim basis. This is well recognized in the pre-BMS case law and should not be forgotten in the post-BMS landscape.
This article is presented for informational purposes only and is not intended to constitute legal advice.
http://www.mondaq.com/unitedstates/x/663102/Product+Liability+Safety/Putting+The+Specific+Back+In+Specific+Jurisdiction+The+Importance+Of+ClaimByClaim+Jurisdictional+Analysis+In+A+PostBMS+Landscape
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