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Ethicon Media Monitoring 7/26/2018
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Pelvic Mesh Litigation Roiled by Recusal Demand, Judge-Shopping Allegations
Jul 25, 2018 | Law.com
By Max Mitchell
Plaintiffs in the pelvic mesh litigation have accused a Johnson & Johnson subsidiary of judge-shopping after the company asked a Philadelphia judge to recuse from an upcoming trial and also sought to have its appeal of a $13 million verdict assigned to a different appellate panel.
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Pelvic Mesh Litigation Roiled by Recusal Demand, Judge-Shopping Allegations
Jul 25, 2018 | Law.com
By Max Mitchell
Plaintiffs in the pelvic mesh litigation have accused a Johnson & Johnson subsidiary of judge-shopping after the company asked a Philadelphia judge to recuse from an upcoming trial and also sought to have its appeal of a $13 million verdict assigned to a different appellate panel.
The new allegations come as the state appellate courts are beginning to wade into jurisdictional questions sparked by the U.S. Supreme Court’s Bristol-Myers Squibb v. Superior Court of California ruling, which could significantly shrink the pelvic litigation in Philadelphia and alter the city’s broader mass tort landscape.
The latest judge-shopping allegation was leveled Tuesday in the case Perigo v. Ethicon, which had been set to start trial at the end of the month with Philadelphia Court of Common Pleas Judge Kenneth Powell presiding.
Ethicon, the J&J subsidiary that is the focus of much of the pelvic mesh litigation in Philadelphia, had filed a motion Monday asking Powell to recuse, saying the company recently learned the judge’s mother was a plaintiff in a mass tort lawsuit filed in Philadelphia against “Johnson & Johnson companies.” The motion, filed by Lavin, O’Neil, Cedrone & Disipio attorney Joseph O’Neil, also said both cases involved products liability, causation and punitive damages issues, as well as considerations about the admissibility of experts. The motion also said Powell had not previously disclosed the lawsuit.
“Taken together, your honor’s mother’s pending lawsuit, the overlap in issues and the lack of disclosure, raise serious concerns about the appearance of impropriety that justify recusal to assure a fair trial and to avoid, at minimum, an appearance of partiality under the Rules of Judicial Conduct,” Ethicon said in the motion.
Kline & Specter attorney Shanin Specter filed a response the following day for plaintiff Diana Perigo, saying Ethicon’s motion “appears to be judge shopping.”
According to the two-page response, the defendant had raised the issue of Powell’s mother’s lawsuit during a status conference with Philadelphia Judge Arnold New, regarding the pelvic mesh litigation. New oversees the court’s mass tort programs.
Perigo’s response said New “responded unfavorably to the request.”
“Instead of filing a motion to recuse Judge Powell with New and knowing the likely order of Judge New, Johnson & Johnson instead filed this motion with Judge Powell. This appears to be judge shopping,” the response said.
According to the docket in Perigo, Powell denied the recusal request Tuesday afternoon.
The pelvic mesh litigation has grown contentious at times, with J&J calling a deposition request “unreasonable annoyance and harassment,” and the plaintiff saying the company engaged in “flat-out dishonesty,” but the lasted accusations mark the first claims of judge-shopping.
The plaintiffs’ judge-shopping allegations first arose in mid-July, after Ethicon asked the Superior Court to have an en banc panel hear argument in the case Carlino v. Ethicon, which came to a $13.5 million verdict in early 2016. Carlino, however, is currently scheduled to be argued before a three-judge panel next month.
In a July 3 motion filed by Alicia Hickok of Drinker Biddle & Reath, Ethicon asked that Carlino be transferred to the same en banc panel that may also hear similar jurisdictional arguments being raised in two other pelvic mesh appeals. Specifically, the motion asked that Carlino be heard by the same expanded panel that may hear argument in Hammons v. Ethicon, which came to a $12.5 million verdict in late 2015, and in In re Pelvic Mesh Litigation, which is the global docket for Philadelphia’s pelvic mesh mass tort.
Both of those appeals raise questions about whether the pelvic mesh plaintiffs can establish jurisdiction in Pennsylvania in the wake of the Supreme Court’s Bristol-Myers Squibb. That decision, which was hailed by the defense bar as “game-changing” and led to an immediate wave of venue challenges across the country, 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.
Pennsylvania is only beginning to deal with the issue, and a decision last month in Hammons marked the first time a state appellate court has specifically weighed in on the decision’s impact.
Ethicon has contended that Pennsylvania does not have jurisdiction over most of the pelvic mesh cases under, but, in Hammons, a three-judge Superior Court panel determined that Ethicon, a New Jersey company, had enough ties to Pennsylvania to establish jurisdiction in the Keystone State.
According to court records, on July 3, Ethicon requested that an en banc panel hear reargument in Hammons. On the same day, the company also asked for In re Pelvic Mesh Litigation to be argued en banc by the same panel that may hear Hammons. The Superior Court has yet to rule on those requests.
Ethicon’s application seeking en banc review of Carlino was also made July 3, and said that “given the importance of the argument” the cases should be heard together before an en banc panel.
“The issue of how this court will apply the U.S. Supreme Court’s jurisdictional analysis in light of Pennsylvania’s statutory terms is of enormous importance,” the motion said. “Given that there are more than 70 cases—the two that are post-trial and the approximately 70 pending cases that are covered by the interlocutory mass tort appeal—it will protect consistency and judicial economy to have an en banc panel hear the cases together, with the benefit of the analysis and record made before the trial court.”
However, a response that Kline & Specter attorney Charles “Chip” Becker filed July 12 on behalf of plaintiff Sharon Carlino contended that “there is no procedure in the appellate rules for skipping panel arguments.” The response further noted that two of the judges assigned to the three-judge panel set to hear argument in Carlino had previously been on the three-judge panel that decided Hammons. Those judges, Judges Victor Stabile and Correale Stevens, had agreed that Ethicon had sufficient ties to Pennsylvania to warrant jurisdiction.
“No doubt it also has not escaped the panel’s attention that two of the three judges on the upcoming Carlino panel participated in Hammons,” the response said. “The continuance motion raises at least an implication of judge shopping.”
In response to a request for comment about the latest allegations, Ethicon spokeswoman Mindy Tinsley said “Ethicon’s filings set out the clear reasons for the relief sought in its motions.”
Specter declined to comment for the story.
https://www.law.com/thelegalintelligencer/2018/07/25/pelvic-mesh-litigation-roiled-by-recusal-demand-judge-shopping-allegations/
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