Preview Newsletter
Ethicon Media Monitoring 6/19/2018
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Boston Scientific wins third Mass. pelvic mesh trial
Jun 18, 2018 | Mass Device
By Brad Perriello
Boston Scientific (NYSE:BSX) last week won the third Massachusetts trial of a product liability lawsuit brought over two of its pelvic mesh products. -
Boston Scientific Meshes Not Defective Says Jurors
Jun 18, 2018 | Mesh Medical Device News Desk
By Jane Akre
Friday June 15th, a Woburn, Mass. jury came back deciding for Boston Scientific in the 16 day trial of Ana and Jose Martinez. -
Boston Scientific Wins Jury Verdict in Pelvic Mesh Trial
Jun 18, 2018 | Medical Device and Diagnostics Industry
By Amanda Pedersen
Boston Scientific has prevailed in a Massachusetts jury trial involving its Pinnacle and Obtryx pelvic mesh devices. -
AMS Exec Wants Incontinence Devices Back on the Market
Jun 18, 2018 | Mesh Medical Device News Desk
By Jane Akre
Product liability lawsuits were filed against American Medical Systems in Multidistrict litigation (MDL) as early as 2012 when the MDL was created in Charleston, West Virginia. -
2018 Litigation Departments of the Year (Small to Midsize Firms)
Jun 18, 2018 | The Legal Intelligencer
The Legal is thrilled to present the 2018 Litigation Departments of the Year.
Client Attorney Privileged/Attorney Work Product/At Request of Counsel
Online Sources
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Boston Scientific wins third Mass. pelvic mesh trial
Jun 18, 2018 | Mass Device
By Brad Perriello
Boston Scientific (NYSE:BSX) last week won the third Massachusetts trial of a product liability lawsuit brought over two of its pelvic mesh products.
Ana Martinez and her husband Jose sued Marlborough, Mass.-based Boston Scientific in August 2012 in the Bay State’s Middlesex County Superior Court. After a 16-day trial, the jury found June 15 that Boston was not negligent in the design of its Pinnacle and Obtryx pelvic mesh products and did not fail to warn patients of the risks associated with the meshes, according to court documents.
The jury also found that the Pinnacle and Obtryx devices were not defectively designed and that the company did not fail to adequately warn the plaintiff’s implanting physician of their risks, according to the documents.
Boston Scientific’s pelvic mesh products drew worldwide scrutiny last month after being covered in a 60 Minutes episode airing claims that the company knowingly purchased inauthentic Chinese plastic materials to make them.
The report claimed that Boston Scientific won FDA clearance for and used “Marlex” branded polypropylene, made by a subsidiary of Chevron Philips, for its meshes, but in 2004 was warned by Chevron Philips that the branded polypropylene should not be used for permanent implantation.
In January 2016, a purported class-action racketeering lawsuit accused Boston Scientific of illegally smuggling counterfeit resin made in China to make pelvic mesh. Shortly after filing, however, a federal judge booted the lawsuit on claims that the FDA has jurisdiction over the case.
In April 2016, a federal probe into the counterfeit resin allegiations reportedly convened a grand jury in West Virginia.
The same firm that filed the the racketeering suit later asked the FDA to ban the medical device maker’s pelvic mesh products made with the allegedly impure resin.
Boston Scientific said the 60 Minutes report contained “completely false claims,” asserting that the resin it uses in its transvaginal mesh products “matches a formulation from the original U.S. produced resin.”
“We believe that this story was irresponsible and misleading. We provided the show with a statement and are disappointed that our perspective, and those of medical societies and the healthcare community, were not fully reflected in the broadcast,” the company said at the time.
“Our mesh products contribute to only 1% percent of annual sales to our company. Continuing to provide these mesh products is not about profits. It is about doing what is right for patients. Without these products, women would be left with few treatment options for these debilitating and often embarrassing conditions. Across Boston Scientific, our employees work diligently to bring forward important medical devices that help people around the world to live longer, healthier lives. We remain steadfast in our commitment to patients,” Boston Scientific said.
https://www.massdevice.com/boston-scientific-wins-third-mass-pelvic-mesh-trial/
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Boston Scientific Meshes Not Defective Says Jurors
Jun 18, 2018 | Mesh Medical Device News Desk
By Jane Akre
Friday June 15th, a Woburn, Mass. jury came back deciding for Boston Scientific in the 16 day trial of Ana and Jose Martinez.
Jurors decided the Pinnacle and Obtryx pelvic mesh products were not defective and the company did not fail to warn end user doctors about the dangers of the polypropylene meshes.
This was only the fifth win for the medical device maker.
In July 2014, Diane Albright, implanted with a Pinnacle was awarded nothing in the Middlesex County courtroom but she did win a new trial. Maria Cardenas, also in the Mass. courtroom, lost her Obtryx case against Boston Scientific the next month.
Martha Carlson in Statesville, NC also lost her Uphold trial in October 2015 against Boston Scientific as did Eva Sherrer in Kansas City, Mo in February 2016.
Meanwhile, Boston Scientific lost the Martha Salazar case against Boston Scientific in Dallas and was awarded more than $73 million in her Obtryx case. The judge later reduced that award to $34.6 million due tort caps. In Miami, four women who filed a defective mesh cases against Boston Scientific over the Pinnacle mesh they were implanted, were awarded more than $26.6 million (Eghnayem case).
During that same week in November 2014, four plaintiffs filed and won their Obtryx case against Boston Scientific winning more than $18.5 million (Tyree case).
In May 2015, Boston Scientific lost a Pinnacle case filed by Deborah Barba who was awarded $100 million in a Delaware court. The judge later reduced it to $10 million citing a “grossly disproportionate” amount.
See Mesh News Desk story on Trials so Far and outcomes Here.
The following story is taken from the opening statements in Ana Martinez v. Boston Scientific, the product liability trial underway in Middlesex Co. Massachusetts.May 30, 2018, Woburn Courthouse
“Even without the testing – the clinical testing that they should have done, they did know of the dangers of polypropylene products,” Jim Waldenberger of Kline Specter told jurors at the end of last month in explaining the Ana Martinez v. Boston Scientific case to jurors.
Ca No. 12-3081, Mass Superior Court, Woburn, MA, before The Honorable Thomas Billings.
They understood dyspareunia (painful sex) and understood mesh erosion into the vagina. It was all contained in the failure modes effect analysis documents, created by research and development department at Boston Scientific pre-market. Relating to the Pinnacle product, BSC knew the mesh caused excessive inflammation or scarring. Erosion, exposure, dyspareunia, they put it on the market anyway, he said.
Ana Martinez was implanted with two Boston Scientific meshes in December 2010 – one for pelvic organ prolapse (Pinnacle) and another for stress urinary incontinence (Obtryx).
The trial promised to show the key opinion leaders, (KOL) ie Dennis Miller, Peter Rosenblatt, who were paid to promote meshes to other doctors. Even among the KOL, mesh was reported back to the company to have increased rates of complications.
Dr. M. Tom Margolis will testify the more mesh in a product, the more foreign body reaction, the more foreign body reaction, the more scarring, the more nerve entrapment – nothing reported back to the company stopped it from selling its mesh medical devices.
Margolis will be brought in to discount the notion by defense that polypropylene (PP) has been used since the 1950’s as a hernia implant product. He will say the vagina has special functions, for example, it needs to move when the bladder fills up, it has to accommodate the rectum. It is not a fair comparison to compare it to an abdominal hernia mesh.
Even KOL Peter Rosenblatt reported a 27.9 % erosion rate with the Pinnacle product. That did not stop him from heading the Pelvic Floor Institute training for Boston Scientific at its Boston headquarters.
Waldenberger said Boston Scientific will blame the implanting physician Dr. Kord Strebel, MD (Valley Hospital Medical Center, Las Vegas) for implanting the meshes improperly and it will blame Ana for having sex too early following her implant.
Susan Murphy for Boston Scientific objected to the plaintiff attorney telling jurors what she was going to say. “He’s now degrading and insulting me personally and my clients. It’s inappropriate in an opening statement, and he’s now spent ten minutes saying what I’m going to do, the blame, the shifting, the cherry picking. That’s argument, your Honor. That’s not opening statement, and I object to it.”
After a sidebar the court ruled – Overruled.
Attorney Waldenberger told jurors Ana and Jose are from Nevada and are both 58 years old. They have been married for 38 years. They are from Mexico and they are American citizens. English is their second language. Because of that, there will be an interpreter at trial to standby in case they feel more comfortable with a Spanish translation to the proceedings, that will be conducted in English.
Ana works at a casino as a banquet server and Jose has his own business working with the construction industry. She has to wear pads to her job which is humiliating, embarrassing and depressing. Ana and Jose separated for a period of time because of the strain in their relationship, including a loss of intimacy. They decided to work through their issues and are still together.
Susan Murphy of Murphy & Riley, Boston then conducted her opening statements to the 15 jurors. She and Jim Keale represent Boston Scientific. She reminded jurors first that the plaintiff has the burden of proof in this case, proving by the preponderance of the evidence every element of its case.
On the Material Safety Data Sheet (MSDS) she told jurors “that same producer of resin for the polypropylene continues to sell to Boston Scientific, knowing the uses to which it was being put.”
The warnings Boston Scientific provided to Dr. Strebel were “fully informative, completely reasonable, and completely adequate.”
She reminded jurors Boston Scientific’s mission was to provide minimally invasive medical devices. And it’s a hometown company, located in Marlborough and in Middlesex County since its founding in 1979.
No surgery is risk-free, she said to the jurors promising to introduce the risks of a surgical non-mesh repair.
“That’s what drew these urogynecologists to say we need something better. We can’t keep repeat operating on patients.”
She promised to introduce Peter Rosenblatt, and Jim Goddard, an engineer for Boston Scientific’s women’s health division. Goddard will say before its put on the market a medical device must pass through teams that evaluate and test these products.
She promised to show jurors peer-reviewed medical literature on the Obtryx and Pinnacle.
She told jurors they would introduce Dr. Spiegelberg, Cambridge Polymer Group and a chemical engineer to discuss the chemical composition of polypropylene.
As promised by plaintiffs’ side, Murphy indicates in her opening statement that Dr. Strebel addressed a 3 cm mesh erosion, which he removed one and pulls it closed, “and that this was, according to Dr. Rosenblatt, probably an inadvisable way to have managed this.”
After you listen to the evidence “you will come to the conclusion that neither the Pinnacle nor the Obtryx was defective.”
https://www.meshmedicaldevicenewsdesk.com/battle-of-doctors-in-martinez-boston-scientific-mesh-trial/
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Boston Scientific Wins Jury Verdict in Pelvic Mesh Trial
Jun 18, 2018 | Medical Device and Diagnostics Industry
By Amanda Pedersen
Boston Scientific has prevailed in a Massachusetts jury trial involving its Pinnacle and Obtryx pelvic mesh devices.
The jury found that Boston Scientific was not negligent in the design of the pelvic mesh products and did not fail to warn patients of the risks associated with the devices. The jury also concluded that the devices were not defectively designed and that the company did not fail to adequately warn the plaintiff's doctor of the risks.
Nevada resident Ana Martinez and her husband Jose sued Boston Scientific in August 2012 in Middlesex County, Massachusetts. According to the complaint, Ana Martinez suffered from urinary incontinence, mesh erosion, painful intercourse, and pain after she received the Obtryx and Pinnacle devices. The document claims that she incurred "substantial" healthcare expenses as a result of the treatment, but was unable to provide documentation of those costs at the time that the complaint was filed.
This was the third Massachusetts trial the company has won related to these two products.
Vaginal mesh problems re-entered the spotlight last month after a scathing 60 Minutes report claimed Boston Scientific knowingly bought counterfeit plastic materials from a Chinese supplier to make its devices. Boston Scientific opened up to MD+DI after the report aired to defend itself against the allegations.
https://www.mddionline.com/boston-scientific-wins-jury-verdict-pelvic-mesh-trial
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AMS Exec Wants Incontinence Devices Back on the Market
Jun 18, 2018 | Mesh Medical Device News Desk
By Jane Akre
Product liability lawsuits were filed against American Medical Systems in Multidistrict litigation (MDL) as early as 2012 when the MDL was created in Charleston, West Virginia.
To date, there are 21,178 cases naming AMS filed there listing 19,524 as closed.
That’s because AMS was the first company to begin settling with mesh-injured plaintiffs. Judge Joseph Goodwin hailed AMS as an example the other mesh makers should follow. As a result there were no trials naming AMS, now owned by Endo International.
Image: John Nealon, LinkedIn
But that not-to-distant memory is not stopping some principals of the company from trying again to enter the lucrative medical device arena with a newly branded type of pelvic/ transvaginal mesh.AMS EXEC WANTS INCONTINENCE DEVICES BACK ON THE MARKET
John Nealon, who in the past headed the AMS Women’s Health Division that made transvaginal mesh, is launching a new company to reintroduce two incontinence devices back onto the market.
Nealon heads UroCure, a privately held medical device company based in Minneapolis, Minnesota, that is developing slings to treat female incontinence. Opened one year ago, Nealon is the President and CEO. He left AMS in 2013 after five years as Senior Vice President and General Manager of Women’s Health Business.
UroCure raised $2.5 million to fund creating of the urethral slings. It has goals of raising upward of $3.5 million. The slings will rely on the same patented technology used to create the AMS slings such as Sparc and Monarc to treat stress urinary incontinence.
Nealon says the new company plans to “build on the long-standing market leadership position,” said Nealon.
How will the new mesh be different from the old mesh that landed AMS in court facing at least 22,000 lawsuits in the U.S, MND asked John Nealon.“We’re not sharing that at this time. It’s not public. Until we launch we are keeping things private,” he said to MND.
The new products are expected to launch sometime after the first quarter of next year.
An SEC filing from March (here).
UroCure
701 North Third Street,
Minneapolis MN 55401
612-850-6814Other principals of the company are listed as Dave Staskin, Executive Officer, and Doug Kohns, Executive officer.
A Company statement from gust.com says:
“Re-commercialize slings for female incontinence with IP re-acquired from AMS. We will design, develop and commercialize the products and re-submit for FDA clearance according to previously established 510(k) pathway. Slings are gold standard and are reimbursed in all geographies. During product development phase, the company will use an experienced team of contractors with in-depth knowledge of space, sling design/manufacturing and physicians.”
IP is intellectual property. There is no word here whether or not the slings will be made of polypropylene (PP), a cheap polymer used in most hernia and pelvic meshes.
BACKGROUND – A BAD DEAL
In 2011, Endo International, based in Dublin, Ireland, purchased American Medical Systems Women’s Healh Division for $2.9 billion even though at the time it was valued at $2 billion. In doing so, Endo acquired more than 22,000 product liability defective transvaginal mesh lawsuits.
The men’s health urology division was then sold to Boston Scientific for $1.65 billion.
The women’s health division was relaunched and with a new name, Astora Women’s Health.
Astora Women’s Health closed its doors in March 2016 due to the cost of litigation. At that time, Astora announced it suspended commercial activity concerning women’s health products.
On September 30, 2014, American Medical Systems announced a master settlement of $1.6 billion designed to resolve substantially all of its remaining US vaginal mesh lawsuits.
In August, 2017, Endo International agreed to settle 22,000 unresolved pelvic mesh product liability lawsuits. The company set aside $775 million to do so. Totaling that with its previous settlement dollars, the company pledged more than $3.58 billion to resolve its pelvic mesh litigation and vowed it would pay no more settlements to mesh-injured women.
By being one of the first companies in the multidistrict litigation (MDL) to settle, AMS/ENDO did not face multi-million dollar plaintiff awards in court as other defendants in multidistrict litigation have faced.
At this writing, no AMS mesh case has gone to trial, though some are being prepared for trial.
At one time AMS made the Elevate, Apogee/ Perigee and Monarc,Sparc and Mini-Arc meshes for both pelvic organ prolapse and stress urinary incontinence. POP meshes were removed from the market when in 2012, the Food and Drug Administration ordered they go through a more stringent review before being sold. Most companies did not want to put millions of dollars into research & development of a technology that was proving problematic in implanted women.
Mesh News Desk has regular contact with AMS-implanted mesh women who have not had their cases resolved.
AMS has also been one of the most aggressive to pursue legally those involved in alleged “schemes” to profit from encouraging women to undergo additional mesh removal surgeries to increase the value of their case. See MND story here.
Endo is also facing financial difficulties after one of its opioid medications, Opana ER, was withdrawn from the market, cutting sharply into revenues. Its stock price today is $9.17 from a high of over $12.30 in 2018.
In April 2015, Endo enjoyed a stock price over $94 a share.
https://www.meshmedicaldevicenewsdesk.com/ams-wants-incontinence-devices-back-on-the-market/
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2018 Litigation Departments of the Year (Small to Midsize Firms)
Jun 18, 2018 | The Legal Intelligencer
General Litigation — Hangley Aronchick Segal Pudlin & SchillerLast year, Hangley Aronchick Segal Pudlin & Schiller successfully tackled a broad range of litigation for an eclectic set of clients. Among its many victories in 2017, the firm won a $1.5 million verdict for client Comcast as part of a broader patent infringement fight with Sprint, notched several wins (and saved potentially millions of dollars) on behalf of insurer clients in coverage disputes across the country and, in a case with statewide applicability, successfully argued on appeal to the state Supreme Court that the Upper Merion Area School District’s practice of selectively appealing the assessments of large commercial properties violated the Uniformity Clause of the Pennsylvania Constitution.
The firm also played key roles in two of Pennsylvania’s most high-profile and hotly contested cases: defending the City of Philadelphia’s sweetened beverage tax and representing Gov. Tom Wolf in the battle over federal congressional redistricting.
John Summers, chair of the firm’s litigation department
What were some of the department’s most satisfying successes of 2017, and why?
2017 was a banner year for Hangley Aronchick’s litigation department, on all kinds of cases in trial and appellate courtrooms across the country.We very recently were in the middle of two highly publicized litigations: on behalf of Gov. Tom Wolf, we fought to secure nongerrymandered federal congressional voting districts, a battle that would end in victory in 2018; and we have been successful defending the City of Philadelphia and its beverage tax, which provides critical funding for universal pre-kindergarten, community schools, parks, and recreational facilities. The appeal of the beverage tax litigation is pending before the Pennsylvania Supreme Court.Our litigators who focus their practice on very large insurance coverage matters succeeded in multiple cases across the country in federal and state courts, saving our clients hundreds of millions of dollars.On behalf of national drug store chains, our antitrust litigators actively pursue Big Pharma’s unlawful efforts to improperly extend patents through a variety of improper practices, including by colluding with generic pharma companies. Our colleagues scored yet another set of substantial successes this year in federal litigation in U.S. District Courts and Courts of Appeal.Complementing the firm’s strong real estate department, our litigators led a multi-year battle, ultimately persuading the Pennsylvania Supreme Court to reverse decades of intermediate appellate law authorizing local governments to take real estate tax assessment appeals that discriminate against commercial property owners.The firm has enjoyed many successes on behalf of its many pro bono clients, including working with the Pennsylvania Innocence Project in exonerating a man who was wrongfully convicted and imprisoned for 33 years.
Is it a penchant for efficiency, or a willingness to go the distance as effective trial advocates, that gives the litigation department its reputation?
Our firm’s reputation is enhanced by the fact that our litigators: are flat out smart with seasoned judgment; have real experience as trial lawyers; understand the importance of being completely attentive to clients’ needs and expectations; and are efficient in providing effective representation.
A prospective client in crisis calls and asks why your team should be retained—what is your answer?
Before answering, my first response is to listen well, to understand the nature and scope of the client’s crisis. After understanding the type of crisis—e.g. corporate control battle, substantial fraud, large adverse verdict—I would next introduce the client to our team, who would rapidly prepare a plan to help resolve—or how best to put the client on a path to resolving—the crisis. Throughout, I would reassure the client that just as the good news is never as good as it seems, so the bad news is never as bad as it seems.
It’s a challenging litigation market, with flat or declining demand, rate pressures, and other factors. From a business perspective, what does it take for a litigation department to succeed in this environment?
To thrive as the firm has done, my colleagues and I provide first rate legal advice and services, actively respond to client inquiries and expectations, bill fairly and remain flexible to consider alternative billing methods.
What is the firm doing to ensure that future generations of litigators are ready to take the helm?
Multiple factors ensure that future generations of Hangley Aronchick litigators are ready to lead. Part of the answer lies in that, because of our modest size of approximately 35 litigators, each of us is visible and there is no place to hide. This means that our litigators are constantly stretching and enjoying the accompanying professional growth. A second part of our success flows from the fact that, day in and day out, we work together so collaboratively. Litigators at every level learn from each other. It is a reciprocal process by which not only are the more junior lawyers mentored by the more senior litigators, but the junior lawyers are given the responsibility of educating the litigation team on key legal developments and basic facts. Finally, the firm yearly recruits enormously talented young lawyers and has had great success in episodically attracting terrific, experienced lateral lawyers.Class Action — Montgomery McCracken Walker & Rhoads
Montgomery McCracken Walker & Rhoads had a productive 2017 in which the firm represented a number of high-profile companies including Microsoft, Verifone, Exxon Mobil and others.
In June 2017, the firm was co-counsel to Microsoft in the landmark U.S. Supreme Court decision in Microsoft v. Baker, in which the justices ruled unanimously that the federal courts of appeals lack jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice. Among the firm’s other successes, the class action defense group also obtained favorable results for Verifone in FACTA suits, for Valve Corp. in a gaming suit, and for Hero Nutritionals in food-labeling suits.
Chuck Casper, chair of the firm’s class action defense practice group
What were some of the department’s most satisfying successes of 2017, and why?
It’s hard to beat winning a case in the U.S. Supreme Court, especially one that affects all class actions in federal courts. In Microsoft v. Baker, the court unanimously decided that class action plaintiffs must follow Rule 23(f) and ask the Court of Appeals for discretionary review if they lose a class certification battle in the district court and want to appeal right away. No more may plaintiffs force an immediate appeal by dismissing their claims with prejudice and then appealing; instead they must take their individual claims to trial and appeal the class certification ruling after a final judgment is entered, if the Court of Appeals denies their Rule 23(f) petition for an immediate appeal. In all circuits, both defendants and plaintiffs must now follow the same rule for seeking an immediate appeal from an adverse class certification ruling.
We’ve also had the good fortune to represent defendants in some of the key cases exploring the impact of the Supreme Court’s 2016 standing decision in Spokeo v. Robins on no-injury cases brought under statutes granting the right to bring civil suits for statutory damages. We’ve won some dismissals, and, early this year, the U.S. Court of Appeals for the Ninth Circuit affirmed one arising from a case in Nevada. Plaintiffs must show that they suffered a real injury to be able to sue in federal court. Even when Congress grants a right to sue, a plaintiff must show real injury to proceed.
At a time when class action reform is back at the forefront of political discourse, do you anticipate the nature of your work changing in the coming years?
Since the Class Action Fairness Act of 2005, the biggest changes have been judicial, and I expect that to continue.
First, the Courts of Appeals, and eventually the Supreme Court in Wal-Mart v. Dukes and Comcast v. Behrend, worked out the district courts’ proper role in ruling on class certification motions. Now, plaintiffs seeking class certification must prove with evidence that they meet all of Rule 23’s class certification requirements, and district courts must resolve factual disputes and make findings after a rigorous analysis. I see fine-tuning, as in the Rule 23 amendments that will take effect on Dec. 1 unless Congress intervenes, rather than major changes in the years ahead. But the Supreme Court just agreed to review a Ninth Circuit decision that could make a big change in some class action settlements—whether settlement proceeds may be given to charities when class members are hard to identify or individual shares are too small for cost-effective distribution—so-called cy pres (next best) settlements.
Second, in AT&T Mobility v. Concepcion, American Express v. Italian Colors Restaurant, and May 2018’s Epic Systems v. Lewis, the Supreme Court found that the Federal Arbitration Act permits sellers and their customers, and employers and their employees, to agree to arbitrate disputes individually, and not to sue in class actions—and overrules other laws that may seem to be to the contrary. Every year, the Supreme Court takes cases in which state or federal courts have cut back on individual arbitration rights and usually reverses them. In April, the court took a Ninth Circuit case holding that an arbitration agreement that does not mention classwide arbitration can nonetheless be construed against the drafter to permit classwide arbitration. Varela v. Lamps Plus. We’ll get a decision next year. The effect of these arbitration decisions has been to move disputes that once became years-long class actions in court to speedy private arbitrations instead. I expect this to continue, with the Supreme Court stepping in to enforce the Federal Arbitration Act as needed. Congress could amend the act, but I don’t see that happening without a major change in Washington.
A prospective client in crisis calls and asks why your team should be retained—what is your answer?
We have a nimble team with decades of experience representing some of America’s leading companies in high-stakes class actions across the country.
It’s a challenging litigation market, with flat or declining demand, rate pressures, and other factors. From a business perspective, what does it take for a litigation department to succeed in this environment?
You have to respond to what clients need. They need the right team for a case from top to bottom, but they also may need financial predictability and risk-sharing to meet their financial objectives.
What is the firm doing to ensure that future generations of litigators are ready to take the helm?
We do our best to give them training, experience, and client engagement. We take our associates to national meetings, such as the ABA’s annual National Institute on Class Actions, where they will be exposed to some of the best practitioners and latest developments. We give them NITA trial training and practical experience in court and arbitrations. And they work directly with our clients.Products Liability/Mass Torts — Kline & Specter
Kline & Specter had several victories last year in two major products liability/mass tort litigations docketed in the Philadelphia courts. These involved Risperdal, the antipsychotic drug found to be linked to gynecomastia, and vaginal mesh, a product that is surgically implanted to treat organ prolapse and urinary incontinence and that has been alleged to be defective, eroding and causing severe pain in some patients.
In one vaginal mesh case, the firm won a $57.1 million verdict, including $50 million in punitive damages, against defendant Ethicon, a Johnson & Johnson subsidiary. The firm also won a $20 million verdict against Ethicon, which included $17.5 million in punitives.
The firm also fought and won a battle to keep 120 vaginal mesh cases filed by out-of-state clients in the Philadelphia Court of Common Pleas, defeating Ethicon’s bid for removal under the U.S. Supreme Court’s landmark decision in Bristol-Myers Squibb v. Superior Court of California.
In addition, Kline & Specter successfully argued to the state Superior Court to allow for punitive damages against Janssen Pharmaceuticals, the division of Johnson & Johnson that makes Risperdal. Following arguments last year, the court held in January of this year that, when it comes to the question of whether they should be allowed to seek punitive damages at trial, plaintiffs could seek to have the law of their home state apply to their case.
Shanin Specter
What were some of the firm’s most satisfying successes in mass torts and products liability litigation in 2017, and why?
We won several large product liability verdicts in transvaginal mesh cases. We continue to litigate many product liability cases, including Risperdal and defectively designed automobiles, other machines and other products.
The U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California has been called a game-changer for mass tort litigation. How formidable an obstacle will this ruling be for plaintiffs going forward?
In some circumstances it will force cases to trial in venues unaccustomed to product liability cases or on the home turf of the defendant. That’s a problem for some plaintiff’ firms and hence it’s a problem for those plaintiffs. We don’t worry about that as we’re used to trying and winning cases in difficult environments.
A prospective client in crisis calls and asks why your team should be retained—what is your answer?
Look at our track record. We have the most big verdicts and settlements of any Pennsylvania law firm.
What is the firm doing to ensure that future generations of litigators are ready to take the helm?
We give younger lawyers great opportunities to try cases. And they win. For example, two of our partners have won verdicts of $47 million and $57.1 million in the last year alone. Nothing is more important for a trial lawyer than simply trying and winning cases. That’s a timeless formula for success. Professional Liability — Rebar Bernstiel
Rebar Bernstiel stood out in the field of professional liability defense, taking an aggressive position on every case, be it with the goal of reasonable settlement for its clients or dismissals and no-verdict judgments.
The firm particularly stands out as a 100-percent female owned firm, which of course also provides it with specific challenges. Those challenges were faced head on with a focus on the clients and their business, with its professionals enthusiastically working to understand and engage in the professional’s business to come up with unique approaches to every case.
Cathleen Kelly Rebar, the firm’s managing partner
What were some of the department’s most satisfying successes of 2017, and why?
Rebar Bernstiel handled a wide array of professional liability matters in 2017 and got impressive results for its clients in each one.
In perhaps the most closely watched case the firm handled last year, Rebar Bernstiel successfully defended its client, Messa & Associates, against a Dragonetti Act lawsuit brought by attorney Nancy Raynor. Raynor had filed suit against the lawyers who sought to have her hit with a $1 million sanction over her handling of an expert in a medical malpractice case. The sanction was ultimately overturned on appeal but Raynor’s Dragonetti Act suit was dismissed with prejudice by a Philadelphia trial judge, who said the sanctions motion had been a legitimate use of process.
The firm also obtained favorable results last year on behalf of a broad range of professional liability clients including a nursing staffing agency, a physician’s assistant at a state prison, a medical practice and several area lawyers and law firms.
A prospective client in crisis calls and asks why your team should be retained—what is your answer?
Our firm solves problems. As professionals, we understand the need to rise to the occasion. A client crisis means everything else is set aside until we have balanced the problem at hand. Sometimes, that means stabilizing the situation until a more permanent solution can be reached. On other occasions, that means working around the clock until a solution is found and a strategy is implemented. No matter how large or small, we will craft a strategy to achieve the best possible outcome. We work as a team, collaborating and providing productive criticism that enables us to handle many different types of matters for many different kinds of professionals. Because of our approach, our clients often send us to jurisdictions that are not our primary practice locations. They do this because they trust us to offer honest, in-depth and creative strategies to their legal problem.
When representing a client whose professional reputation is on the line, how do you deal with public scrutiny while the case is ongoing?
As a defense firm, it’s in our interest to minimize the information in the press and keep our case in the courtroom. To that end, we often request confidentiality orders and protective orders at the outset of a case, which leaves the public information to the formal pleadings. We work hard to avoid harmful motion practice that could provide an avenue for other counsel to tell their story through a motion narrative. We generally will not comment on a matter publicly, unless retained for public relations specifically. However, our staff has experience in media, public relations and marketing, and we are there for our clients to offer guidance if there is a high amount of media attention that warrants public statement.
It’s a challenging litigation market, with flat or declining demand, rate pressures, and other factors. From a business perspective, what does it take for a litigation department to succeed in this environment?
We keep our rates competitive while still producing superior work product and results to keep up with the rate pressures of today’s market. Mostly this is done through efficient process and database maintenance to eliminate unnecessary overhead and billable time. Our strategy has resulted in increased demand for work, so we haven’t realized flat or declining demand in our own caseload. In this environment and in the tripartite relationship between the carrier and the insured, everyone at the firm knows we have to constantly be prepared to litigate aggressively on our client’s behalf while not only meeting client expectations but exceeding them. At the same time, we are focused on growing our personal relationships with our book of business so that we can anticipate their needs.
https://www.law.com/thelegalintelligencer/2018/06/18/2018-litigation-departments-of-the-year-small-to-midsize-firms/
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