Ethicon Media Monitoring 02/10/2015

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1. Trial Underway in California Ethicon Abbrevo Transvaginal Mesh Case

   Feb 9, 2015 | Harris Martin Publishing

   Trial is underway in a California transvaginal mesh lawsuit accusing Johnson & Johnson and Ethicon Inc. of hiding the risks associated with their Gynecare TVT Abbrevo Sling System.
2. Top Product Verdicts Of 2014 — And The Firms That Won Them

   Feb 9, 2015 | Law360

   By Sindhu Sundar
   
   
   A Texas state judge in October entered a $34.6 million judgment against Boston Scientific Corp. after a jury found it had negligently designed and marketed a pelvic mesh implant
3. Failure-To-Warn, Punitive Damages Claims to Proceed Against Bard in Transvaginal Mesh Case

   Feb 9, 2015 | Harris Martin Publishing

   The learned intermediary doctrine defeats a breach of express warranty claim asserted against Bard in a transvaginal mesh multidistrict litigation case because the claim is essentially a repackaged failure-to-warn claim, a West Virginia federal judge has ruled.

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Online Sources

1. Trial Underway in California Ethicon Abbrevo Transvaginal Mesh Case

   Feb 9, 2015 | Harris Martin Publishing

   Trial is underway in a California transvaginal mesh lawsuit accusing Johnson & Johnson and Ethicon Inc. of hiding the risks associated with their Gynecare TVT Abbrevo Sling System.

   Trial commenced in the Kern County (Calif.) Superior Court on Jan. 26, with Judge Lorna Brumfield presiding.

   According to the complaint filed in April 2013, Dr. Hung T. Luu implanted Colleen Perry with Ethicon’s Gynecare TVT Abbrevo Sling System in March 2011 to treat her stress urinary incontinence. Perry was forced to undergo revision surgery in January 2012, during which the device was explanted and she has since suffered ...

   Subscription required, for full article please see: http://harrismartin.com/article/19075/trial-underway-in-california-ethicon-abbrevo-transvaginal-mesh-case/

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2. Top Product Verdicts Of 2014 — And The Firms That Won Them

   Feb 9, 2015 | Law360

   By Sindhu Sundar

    Last year's biggest product liability verdicts included multibillion-dollar decisions with large punitive damages components — a $6 billion award against Takeda Pharmaceutical Co. Ltd. that was later reduced, and a $23 billion Engle verdict against R.J. Reynolds Tobacco Co. — but with appeals still pending, the eye-popping awards face dramatic cuts.
   
   The dollar amounts of some of the larger verdicts over the past year have made it more likely that judges will consider issuing remittiturs — a usually rare tool — to reduce their sizes, attorneys say.
   "Some judges are more reluctant than others to interfere with the verdict, but with outrageous results where the punitive damages to compensatory damages ratio is too high, there is a lot more pressure on the judge to issue remittitur," Colin Kelly of Alston & Bird LLP said.
   The verdict against Takeda over its diabetes drug was reduced to roughly $27 million after the Louisiana federal judge overseeing the case found that the punitive damages component of the award had to be brought in line with the $1.5 million in actual damages awarded to plaintiffs Terrence and Susan Allen in that case.
   "It was significantly reduced, but when that is hailed as a win, it's a recognition that it could've been much, much worse," plaintiffs attorney Paul Slager of Silver Golub & Teitell LLP said. The reduced verdict is currently on appeal.
   These are the largest product liability verdicts of 2014 and the firms that won them:
   
   1) $23.6 Billion in Cynthia Robinson v. R.J. Reynolds Tobacco Co.: Gary Williams Finney Lewis Watson & Sperando PL, others
   R.J. Reynolds was hit in July with a $23.6 billion verdict by a state jury in Florida, marking one of the largest verdicts in one of the thousands of so-called Engle progeny tobacco lawsuits winding their way through Florida's courts after a historic $145 billion class action verdict against the major tobacco companies was decertified in 2006.
   The jury issued the award for Cynthia Robinson, who had first brought her individual suit in 2008 on behalf of her late husband, Michael Johnson Sr. The jury had also awarded her $17 million in compensatory damages.
   The tobacco maker has asked Florida's First Judicial Circuit to overturn the verdicts, arguing that the award was "absurdly excessive" and motivated by prejudice. It argued that appeals courts have set aside other similarly large verdicts, including one for $28 billion in Bullock v. Philip Morris USA Inc., according to court documents.
   Cynthia Robinson is represented by Willie E. Gary, Tricia P. Hoffler, Donald N. Watson and Jean A. Laws-Scott of Gary Williams Finney Lewis Watson & Sperando PL and attorneys Howard M. Acosta and Christopher Chestnut.
   R.J. Reynolds is represented by Randal Baringer, Jonathan Engram and Geoffrey Beach of Womble Carlyle Sandridge & Rice LLP.
   The case is Cynthia Robinson v. R.J. Reynolds Tobacco Co., case number 2008 CA 000098, in the Circuit Court of the First Judicial Circuit in and for Escambia County, Florida.
   2) $1.15 Billion in The People of the State of California v. Atlantic Richfield Co. et al.: Cotchett Pitre & McCarthy LLP, Motley Rice LLC, others
   A California state judge in January ordered Sherwin-Williams Co., NL Industries Inc. andConAgra Grocery Products Co. LLC to pay $1.15 billion to fund a government-run program to address health risks posed by lead paint in California homes. Her ruling increased the amount the companies had to pay by $50 million from a tentative order that she had issued in the previous month.
   The long-running suit, first filed in 2000, had sought to hold numerous gasoline, paint and chemical companies responsible for the "massive public health crisis" caused by lead in California's homes and public buildings, according to court documents.
   The municipalities are represented by Joseph Cotchett, Nancy Fineman, Aron Liang and Brian Schnarr of Cotchett Pitre & McCarthy LLP and Fidelma Fitzpatrick of Motley Rice LLC, among others.
   The companies are represented variously by Arnold & Porter LLP, Skadden Arps Slate Meagher & Flom LLP, McGrath North Mullin & Kratz PC, Glynn & Finley LLP,McGuireWoods LLP, McManis Faulkner, Bartlit Beck Herman Palenchar & Scott LLP andJones Day.
   The case is The People of the State of California v. Atlantic Richfield Co. et al., case number 1-00-cv-788657, in the California Superior Court, Santa Clara County.
   3) $125 Million in In re: Garlock Sealing Technologies LLC: Caplin & Drysdale Chtd., Moon Wright & Houston PLLC
   A January 2014 ruling determined Garlock Sealing Technologies LLC was liable for $125 million in asbestos claims, but it was considered a victory for Garlock — the plaintiffs were seeking $1.25 billion.
   U.S. Bankruptcy Judge George Hodges found Garlock's discovery showed plaintiffs had won inflated settlements in several cases in the past by concealing claims against other companies.
   In January of this year, Garlock reached an agreement with future asbestos claimants in its bankruptcy case that includes a $358 million settlement of all asbestos injury claims against the company and a revised reorganization plan.
   Garlock is represented by Garland S. Cassada, D. Blaine Sanders, Jonathan C. Krisko and Richard C. Worf Jr. of Robinson Bradshaw & Hinson PA.
   The committee of claimants is represented by Trevor W. Swett III, Jeffrey A. Liesemer, Elihu Inselbuch and Andrew J. Sackett of Caplin & Drysdale Chtd. and Travis W. Moon of Moon Wright & Houston PLLC.
   The case is In re: Garlock Sealing Technologies LLC, case number 3:10-bk-31607, in the U.S. Bankruptcy Court for the Western District of North Carolina.
   4) $111.1 Million in Damon L. Andrade et al. v. MHC Operating LP: Endeman Lincoln Turek & Heater LLP
   Punitive damages figured prominently in this large award against real estate investment trust Equity LifeStyle Properties Inc., which a California state jury in April found to be guilty of breach of contract, negligence and nuisance for failing to maintain one of its mobile home developments.
   The more than $110 million award that went to 61 residents of the property included a $15.3 million verdict for compensatory damages and $95.8 million in punitive damages. The residents had sued in 2009 and claimed in a subsequent amended complaint that the mobile home park owner had ignored plaintiffs' notifications of open sewage spills near the plaintiffs' homes, an "unbearable stench" throughout the park, discolored water, and inadequate lighting and security for the grounds.
   
   The plaintiffs are represented by Henry E. Heater, James C. Allen and David Semelsberger of Endeman Lincoln Turek & Heater LLP.
   
   Equity LifeStyle is represented by Clarke B. Holland and Brendan J. Fogarty of LHB Pacific Law Partners LLP, Steven S. Fleischman of Horvitz & Levy LLP and Robie & Matthai APC.
   
   The case is Damon L. Andrade et al. v. MHC Operating LP et al., case number 109CV140751, in the Superior Court of the State of California, County of Santa Clara.
   5) $81.1 Million in David Olson et al. v. Hyundai Motor Co.: Bohyer Erickson Beaudette & Tranel PC
   Hyundai Motor Co., which was originally hit with $248 million in damages in this wrongful death case that involved an alleged steering defect, saw the $240 million punitive damages component of the award slashed to $73 million in September. 
   The Montana state judge presiding over the case found that the punitive damages component was disproportionately high compared to the $8.1 million compensatory damages award. The case involved a 2011 crash that killed two cousins.
   The plaintiffs are represented by Bohyer Erickson Beaudette & Tranel PC.
   Counsel information for Hyundai was not immediately available.
   The case is David Olson et al. v. Hyundai Motor Co. et al., case number DV-11-304, in the Judicial Branch of Montana, 20th Judicial District, Lake County.
   6) $55 Million in Carlos Martinez et al. v. American Honda Motor Co. Inc.: Eisenberg Rothweiler Winkler Eisenberg & Jeck PC
   Honda Motor Co. was hit with the highest auto verdict ever issued in Pennsylvania when a Philadelphia jury issued a $55 million verdict in July over a seat belt defect that allegedly paralyzed a driver.
   
   Plaintiff Carlos Martinez, who became a quadriplegic after his 1999 Acura Integra rolled over in an accident, had claimed Honda knew of the defect as early as 1992 but neither fixed it nor disclosed it to drivers. The verdict included $25 million for noneconomic damages such as pain and suffering, $14.6 million for future medical expenses, $15 million for his wife's loss of consortium and $720,000 for lost future earnings.
   Martinez was represented by Stewart J. Eisenberg and Daniel J. Sherry Jr. of Eisenberg Rothweiler Winkler Eisenberg & Jeck PC.
   Counsel information for Honda was not available.
   The case is Carlos Martinez et al. v. American Honda Motor Co. Inc., case number 111203763, in the Court of Common Pleas of Philadelphia, Pa.
   7) $41.1 Million in Boersma v. R.J. Reynolds Tobacco Co.: Lieff Cabraser Heimann & Bernstein LLP
   In October, Philip Morris and R.J. Reynolds were hit with a $41.1 million verdict by a Florida federal jury in favor of plaintiff Kenneth Kerrivan, a smoker with severe chronic obstructive pulmonary disease, according to court documents.
   Kerrivan had sued the tobacco giants in 2008, claiming they had conspired to conceal the dangers of smoking and the addictive nature of cigarettes. His suit is also among the Engle progeny cases.
   Kerrivan is represented by Kenneth Byrd and Sarah London of Lieff Cabraser Heimann & Bernstein LLP.
   R.J. Reynolds is represented by Jordon L. Patterson, Stephanie E. Parker and John F. Yarber of Jones Day.
   Philip Morris is represented by Connor J. Sears and Stanley D. Davis of Shook Hardy & Bacon LLP, Kate Skagerberg of Beck Redden LLP and Scott A. Chesin of Mayer Brown LLP.
   The case is Boersma v. R.J. Reynolds Tobacco Co. et al., case number 3:09-cv-13703, in the U.S. District Court for the Middle District of Florida.
   8) $37 Million in Allen et al. v. Takeda Pharmaceutical Co. Ltd.: The Lanier Law Firm, Neblett Beard & Arsenault, Weitz & Luxenberg PC
   The original $9 billion verdict against Takeda and Eli Lilly & Co. for allegedly concealing the bladder cancer risks of diabetes drug Actos, was reduced to $37 million in October. U.S. District Judge Rebecca Doherty, who is overseeing the federal Actos litigation in Louisiana, has said that punitive damages in the case should be roughly 25 times the amount of compensatory damages.
   The appeal is before the Fifth Circuit, which will likely consider the 25:1 ratio she chose, along with whether she was correct to allow the jury to consider evidence about Takeda's destruction of custodial files that she said could have been useful to the plaintiffs.
   The plaintiffs are represented by W. Mark Lanier of The Lanier Law Firm, Richard J. Arsenault of Neblett Beard & Arsenault and Paul J. Pennock of Weitz & Luxenberg PC.
   Takeda and Eli Lilly are represented by Sara J. Gourley and Sherry A. Knutson of Sidley Austin LLP, John E. McElligott Jr. of Davidson Meaux Sonnier McElligott Fontenot Gideon & Edwards LLP and Bruce R. Parker of Venable LLP.
   The case is Allen et al. v. Takeda Pharmaceutical Co. Ltd. et al., case number 6:12-cv-00064; and the MDL is In re: Actos (Pioglitazone) Products Liability Litigation, case number 6:11-md-02299; both in the U.S. District Court for the Western District of Louisiana.
   9) $35 Million in Richard Boatright v. Philip Morris USA Inc.: Schlesinger Law Offices PA
   In November, Philip Morris was hit with a $35 million verdict in a lawsuit claiming a 61-year-old smoker underwent two lung transplants as a result of smoking Marlboro brand cigarettes since the age of 12.
   The Polk County jury awarded Richard Boatright $15 million in compensatory damages and $20 million in punitive damages. Philip Morris was found to be 85 percent responsible for Boatright’s emphysema and chronic obstructive pulmonary disease while Boatright was found to be 15 percent responsible for his illness.
   Boatright is represented by Schlesinger Law Offices PA.
   Philip Morris is represented by Shook Hardy & Bacon LLP.
   Liggett Vector Brands LLC is represented by Kasowitz Benson Torres & Friedman LLP.
   The case is Richard Boatright v. Philip Morris USA Inc. et al., case number 2011CA-000158-0000-WH, in the Circuit Court for Polk County, Florida.
   10) $34.6 Million in Salazar v. Lopez: Freese & Goss PLLC, Matthews & Associates, Capshaw & Associates, Edwards & de la Cerda PLLC
   A Texas state judge in October entered a $34.6 million judgment against Boston Scientific Corp. after a jury found it had negligently designed and marketed a pelvic mesh implant, slashing the jury's $50 million punitive damages award to $11.18 million under a state damages cap.
   Dallas County District Judge Ken Molberg signed off on a reduced judgment that lowered the jury's punitive damages award from $50 million to include $10.4 million in economic damages and $750,000 in noneconomic damages. The judgment also includes nearly $23.5 million in actual damages for plaintiffs Martha and Felix Salazar, who alleged Boston Scientific's Obtryx Transobturator Mid-Urethral Sling was defectively designed and marketed.
   Maria Salazar is represented by Tim Goss and Tamara Banno of Freese & Goss PLLC, David Matthews and Julie Rhoades of Matthews & Associates, Richard Capshaw of Capshaw & Associates, and Peter de la Cerda and Kevin L. Edwards of Edwards & de la Cerda PLLC.
   Boston Scientific is represented by Jennise Stubbs of Shook Hardy & Bacon LLP and Maria Karos of Sedgwick LLP.
   The case is Salazar v. Lopez, case number DC-1214349, in the 95th Judicial District Court of Dallas County, Texas.
   

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3. Failure-To-Warn, Punitive Damages Claims to Proceed Against Bard in Transvaginal Mesh Case

   Feb 9, 2015 | Harris Martin Publishing

   The learned intermediary doctrine defeats a breach of express warranty claim asserted against Bard in a transvaginal mesh multidistrict litigation case because the claim is essentially a repackaged failure-to-warn claim, a West Virginia federal judge has ruled.

   However, in the Feb. 5 order, Judge Joseph R. Goodwin of the U.S. District Court for the District of West Virginia, denied Bard’s motion for summary judgment as to the plaintiff’s failure-to-warn claim, noting the plaintiffs have pointed to numerous instances where the implanting surgeon stated that he would not have used the Avaulta Plus system had he known ...

   Subscription required, for full article please see: http://harrismartin.com/article/19074/failure-to-warn-punitive-damages-claims-to-proceed-against-bard-in-transvaginal-mesh-case/ 

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