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Ethicon Media Monitoring 5/22/2018
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Pa. Appeals Court Urged To OK Philly Mesh Case Jurisdiction
May 21, 2018 | Law 360
By Matt Fair
A Philadelphia trial judge is urging a state appeals court to find that a Johnson & Johnson unit's decision to contract with a Pennsylvania-based company in connection with its allegedly defective pelvic mesh implants allowed non-Pennsylvania plaintiffs to bring personal injury claims over the products in the state. -
Pa. Maker Keeps Pelvic Mesh Cases in State Court Under 'Bristol-Myers'
May 21, 2018 | The Legal Intelligencer
By Max Mitchell
Ethicon’s decision to use a Pennsylvania-based company to manufacture its pelvic mesh products is the reason why nearly 100 lawsuits against the mesh-maker should remain in the Keystone State, according to a new ruling shedding light on how judges in Philadelphia may interpret the U.S. Supreme Court’s high-profile pronouncement in Bristol-Myers Squibb v. Superior Court of California. -
Is Pelvic Mesh Safe? What Patients Need to Know
May 21, 2018 | Michigan Medicine
By Kevin Joy
Questions surrounding pelvic mesh could leave some women feeling trapped.
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Pa. Appeals Court Urged To OK Philly Mesh Case Jurisdiction
May 21, 2018 | Law 360
By Matt Fair
A Philadelphia trial judge is urging a state appeals court to find that a Johnson & Johnson unit's decision to contract with a Pennsylvania-based company in connection with its allegedly defective pelvic mesh implants allowed non-Pennsylvania plaintiffs to bring personal injury claims over the products in the state.
While J&J unit Ethicon Inc. has challenged a decision allowing the Philadelphia County courts to retain jurisdiction over approximately 70 cases from out-of-state plaintiffs who claim they were injured due to defective mesh implants, Judge Arnold New told the state's Superior Court in an opinion on Friday that he'd made the right call in allowing the cases to stay.
He said the New Jersey-based Ethicon had made a conscious choice to affiliate with the Pennsylvania-based Secant Medical Inc. to manufacture its mesh products, and therefore the Philadelphia courts could claim jurisdiction over claims from out-of-state residents.
"The non-Pennsylvania plaintiffs established moving defendants have sufficient minimum contacts with Pennsylvania such that this court's exercise of personal jurisdiction comports with the notion of fair play and substantial justice," the judge said. "Moving defendants purposefully availed themselves of the privilege of doing business in Pennsylvania by reaching out to a Pennsylvania-based corporation ... to fulfill its manufacturing needs."
Ethicon had hoped to move the out-of-state cases from Philadelphia County in the wake of two recent U.S. Supreme Court decisions narrowing the scope of jurisdiction for plaintiffs looking to pursue claims in venues outside either where they were injured or where a defendant is headquartered.
Judge New had initially agreed in 2015 to allow out-of-state residents to bring claims against Ethicon in Philadelphia as part of a mass tort program to consolidate mesh cases, but agreed to rethink his decision in August in the wake of the two recent Supreme Court holdings.
The first, handed down last May, found that two out-of-state employees couldn't sue BNSF Railway Co. in Montana given the company's lack of a bona fide business presence in the state.
That ruling came just weeks before an 8-1 opinion from the Supreme Court that Bristol-Myers Squibb Co. did not have sufficient business contacts in California to confer courts there with jurisdiction over some 600 lawsuits brought by out-of-state plaintiffs over injuries allegedly caused by the blood thinner Plavix.
Judge New, however, ultimately rejected Ethicon's renewed dismissal bid after hearing arguments from the plaintiffs about the company's reliance on Secant, which is not a defendant in the litigation, to manufacture the mesh used in the allegedly defective implants.
After the judge rejected Ethicon's jurisdictional challenge in a one-page order in December, the company pushed to have the issue heard on appeal by the state's Superior Court.
Judge New agreed to certify the matter in February, and followed up with the opinion released by the court Friday.
The opinion rejected arguments from Ethicon that Secant's role in manufacturing the devices was too small for the company to be considered as having significant ties to Pennsylvania.
"While moving defendants correctly point out the process of manufacturing a pelvic mesh device involves multiple steps … Secant's role is far from de minimus," the judge said. "Indeed, Secant's job is to knit filament into the mesh used in pelvic mesh medical devices. In light of this crucial role [Secant] plays in the manufacturing process for pelvic mesh medical devices, [the] argument fails."
Shanin Specter and Chip Becker, attorneys with Kline & Specter PC representing the plaintiffs, told Law360 in a statement Monday that Judge New had made the right call.
"It's clear that J&J has significant [ties] with Pennsylvania in the vaginal mesh cases both because that's where the mesh was made and because other J&J activity in Pennsylvania was key to mesh development," the statement said. "We are confident that Superior Court will agree that jurisdiction in Pennsylvania is proper."
Ethicon declined to comment.
The plaintiffs are represented by Thomas Kline, Shanin Specter, Lee Balefsky and Charles "Chip" Becker of Kline & Specter PC and Clayton Clark of Clark Love & Houston.
Ethicon is represented by Kenneth Murphy and Melissa Merk of Drinker Biddle & Reath LLPand Julie Callsen of Tucker Ellis LLP.
The case is In Re: Pelvic Mesh Litigation, case number 140200829, before the Court of Common Pleas of Philadelphia County, Pennsylvania.https://www.law360.com/articles/1045449/pa-appeals-court-urged-to-ok-philly-mesh-case-jurisdiction
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Pa. Maker Keeps Pelvic Mesh Cases in State Court Under 'Bristol-Myers'
May 21, 2018 | The Legal Intelligencer
By Max Mitchell
Ethicon’s decision to use a Pennsylvania-based company to manufacture its pelvic mesh products is the reason why nearly 100 lawsuits against the mesh-maker should remain in the Keystone State, according to a new ruling shedding light on how judges in Philadelphia may interpret the U.S. Supreme Court’s high-profile pronouncement in Bristol-Myers Squibb v. Superior Court of California.
The opinion, which Philadelphia Court of Common Pleas Judge Arnold New issued May 18, comes out about six months after he denied the Johnson & Johnson subsidiary’s bid to have a significant portion of the pelvic mesh litigation removed from the First Judicial District for lack of jurisdiction.
According to New, the issue came down to how much involvement the Bucks County, Pennsylvania-based Secant had in making the pelvic mesh, and how closely that company’s role tied into the claims the plaintiffs are making.
Citing the testimony of a former Ethicon employee, New said the Pennsylvania company performed an “integral portion” of the manufacturing.
“For each of these devices, Secant Medical Inc. knits Prolene filament into mesh according to specifications set forth by moving defendants at its Bucks County facility before returning the knitted mesh to moving defendants for further processing,” New said. “Since a portion of the manufacturing process of the Gynemesh/Gynemesh PS, Prolene, Prolift, Prosima, TVT, TVT-Exact, TVT-Obturator and TVT-Secur pelvic mesh medical devices occurs in Pennsylvania, this court’s exercise of specific personal jurisdiction comports with traditional notions of fair play and substantial justice.”
While the decision directly affects nearly 100 cases pending in Philadelphia’s pelvic mesh litigation, it offers some insight into how one of the country’s busiest mass tort dockets may exercise its jurisdiction over cases involving out-of-state plaintiffs.
The 13-page opinion is one of the first in Pennsylvania to delve into how trial courts should interpret Bristol-Myers Squibb, which made clear that out-of-state plaintiffs can’t sue companies where the defendants aren’t considered to be “at home,” or haven’t conducted business directly linked to the claimed injury. Some defense attorneys have referred to it as a “game-changing” decision for state-court mass tort programs, but so far the decision has resulted in only four cases being tossed from Philadelphia, which has long been regarded as a hub for pharmaceutical litigation and has recently produced several multimillion-dollar verdicts for plaintiffs in consolidated litigations, including pelvic mesh.
The jurisdictional dispute in the mesh litigation focused on the relationship between Ethicon and Bucks County biomaterials supplier Secant, which manufactured the mesh used in all of Ethicon’s products except for the Prolift +M. The type of mesh used in that product was manufactured by a non-Pennsylvania company.
Although Ethicon contended that Secant’s role in the manufacturing process was not sufficiently linked to the plaintiffs’ claims, New said that, since the plaintiffs raised manufacturing defect claims, the conduct was sufficiently related.
“Moving defendants argue the non-Pennsylvania plaintiffs’ theories of liability focus on the design of the pelvic mesh medical devices, the manner in which the mesh is cut, and implementation techniques, none of which is controlled by Secant,” New said. “At this stage of the proceedings, the non-Pennsylvania plaintiffs have alleged manufacturing defect claims, and a portion of the manufacturing process occurred at Secant’s Pennsylvania facility; accordingly, this court has specific personal jurisdiction.”
Kline & Specter attorney Shanin Specter, who is a lead attorney for the plaintiffs in the pelvic mesh litigation, said Ethicon’s role in making the devices was “clear.”
“It’s clear that J&J has significant affiliation with Pennsylvania in the vaginal mesh cases both because that’s where the mesh was made and because other J&J activity in Pennsylvania was key to mesh development,” Specter said in a statement. “We are confident that Superior Court will agree that jurisdiction in Pennsylvania is proper.”
A spokeswoman for Ethicon declined to comment.
https://www.law.com/thelegalintelligencer/2018/05/21/pa-maker-keeps-pelvic-mesh-cases-in-state-court-under-bristol-myers/
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Is Pelvic Mesh Safe? What Patients Need to Know
May 21, 2018 | Michigan Medicine
By Kevin Joy
Questions surrounding pelvic mesh could leave some women feeling trapped.
https://healthblog.uofmhealth.org/womens-health/pelvic-mesh-safe-what-patients-need-to-know
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