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Ethicon Media Monitoring 12/5/2018
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Pa. Panel Questions Latest Bid To Ax Out-Of-State Mesh Suits
Dec 4, 2018 | Law 360
By Matt Fair
A Pennsylvania appeals court panel raised doubts on Tuesday as to whether a Johnson & Johnson unit could challenge an order letting out-of-state plaintiffs pursue pelvic mesh claims in Philadelphia, given a prior ruling upholding an Indiana woman’s win in a mesh case. -
Pelvic Mesh MDL Leadership Defends Settlement Record as Infighting Ramps Up
Dec 4, 2018 | Law.com
By Max Mitchell
The leadership committee for the pelvic mesh multidistrict litigation is defending its settlement record and hitting back against recent criticism from Philadelphia firm Kline & Specter that the firms piloting the MDL are seeking to set aside too much of plaintiffs’ recovery for attorney fees.
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Pa. Panel Questions Latest Bid To Ax Out-Of-State Mesh Suits
Dec 4, 2018 | Law 360
By Matt Fair
A Pennsylvania appeals court panel raised doubts on Tuesday as to whether a Johnson & Johnson unit could challenge an order letting out-of-state plaintiffs pursue pelvic mesh claims in Philadelphia, given a prior ruling upholding an Indiana woman’s win in a mesh case.
The appeal from J&J subsidiary Ethicon Inc. comes after the supervising judge of a pelvic mesh mass tort program in Philadelphia County agreed last December that the New Jersey-based company’s business links with Pennsylvania made the state an appropriate forum for out-of-state residents to pursue claims over the allegedly faulty implants.
While Ethicon is pushing the state’s Superior Court to upend the jurisdictional order, a three-judge panel on Tuesday suggested the issue was foreclosed under a ruling handed down by the appeals court in June that rejected substantially similar arguments in a case that resulted in a nearly $13 million verdict for Indiana resident Patricia Hammons.
“My struggle is we have a decision out of Superior Court and there are factual findings that you obviously disagree with,” Judge Alice Beck Dubow said during oral arguments. “I don’t know how we get around the precedent of that.”
Ethicon’s fight to toss about 70 mesh cases from non-Pennsylvania residents is based on recent U.S. Supreme Court precedent 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.
The company had previously looked to throw claims from out-of-state mesh plaintiffs out of Philadelphia County, but Judge Arnold New, who oversees the pelvic mesh mass tort program, rejected that bid in March 2015.
Ethicon sought reconsideration after the U.S. Supreme Court handed down its ruling in Bristol-Myers Squibb Co. v. Superior Court of California in June 2017, which held that BMS 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 ruled that Ethicon’s work with the Pennsylvania-based Secant Medical Inc. as its chosen manufacturer of the implants was enough to give the state courts jurisdiction in mesh-related lawsuits.
As Ethicon was pursuing its jurisdictional challenge as part of the mass tort proceedings broadly, the company also raised the argument as it appealed the verdict that Hammons won in December 2015.
But the Superior Court, also citing Ethicon’s work with Secant, rejected the company’s arguments in June.
Compounding the fight for Ethicon in challenging the supervising judge’s order is the fact that two of the three judges hearing the appeal were also part of the panel that decided the Hammons case.
Alicia Hickok, an attorney with Drinker Biddle & Reath LLP representing Ethicon, suggested that the Hammons case was not an appropriate vehicle for decision of the jurisdictional question because the record was developed before the Supreme Court set new precedent on the issue.
“You have a very odd circumstance with Hammons,” she said. “All you had was a trial record that was based upon an analysis that was done based on what happened at trial. The reconsideration only occurred through Judge New, who had made the original order, and who said there are substantial questions of jurisdiction here.”
But Kline & Specter PC attorney Chip Becker argued on behalf of the plaintiffs that, regardless of the route the two cases took to get to Superior Court, they involved the same basic facts around Ethicon’s relationship with Secant.
“Our courts have said that a conclusion reached in one case should be applied to a case that follows with substantially the same facts,” he said. “These are not substantially the same facts, these are the exact same facts.”
The panel took the case under advisement.
Ethicon is represented by Alicia Hickok, Kenneth Murphy, William Carr and Melissa Merk of Drinker Biddle & Reath LLP, Stephen Brody and David Robert of O'Melveny & Myers LLP, and Julie Callsen of Tucker Ellis LLP.
The plaintiffs are represented by Charles “Chip” Becker, Lee Balefsky and Ruxandra Laidacker of Kline & Specter PC.
The case is In Re: Pelvic Mesh Litigation, case number 652 EDA 2018, before the Pennsylvania Superior Court.https://www.law360.com/articles/1107689/pa-panel-questions-latest-bid-to-ax-out-of-state-mesh-suits
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Pelvic Mesh MDL Leadership Defends Settlement Record as Infighting Ramps Up
Dec 4, 2018 | Law.com
By Max Mitchell
The leadership committee for the pelvic mesh multidistrict litigation is defending its settlement record and hitting back against recent criticism from Philadelphia firm Kline & Specter that the firms piloting the MDL are seeking to set aside too much of plaintiffs’ recovery for attorney fees.
At the same time, another law firm has joined Kline & Specter in criticizing the set-aside request, saying some of the fee requests have not been fair and that money for the common benefit fees should not be taken from the plaintiffs’ recoveries, but rather from the primary lawyer’s fee.
The dispute comes as thousands of cases in the pelvic mesh MDL have begun to settle. According to federal records, the litigation topped out at nearly 107,000 claims, and, as of Nov. 15, the seven consolidated litigations have an inventory of 37,299.
The current value of the settlements, according to court records, is roughly $7.25 billion, and the total amount for settlements is expected to be around $11 billion. With the requested 5 percent set aside, that would make the total amount expected for the common benefit fund to reach $550 million.
In mid-November, Athens, Georgia-based Blasingame, Burch, Garrard & Ashley attorney Henry Garrard, who is chairman of the MDL’s fee and compensation committee, petitioned the U.S. District Court for the Southern District of West Virginia to allow for a 5 percent set aside of all awards. That money would go toward attorneys fees and expenses for work that benefited the overall litigation.
Late last month, Kline & Specter attorney Shanin Specter filed a strongly-worded objection—calling the settlement amounts “puny” and saying the leadership committee was settling “inventories way too cheaply.” In a reply filed Monday, Garrard likewise pulled no punches, saying that the criticism was “blatant hypocrisy” since the firm “has undoubtedly been one of the primary beneficiaries of the MDL’s stellar work product.”
“The reason that Kline & Specter is alone in its objection is that its arguments are entirely self-interested and self-serving based solely upon its desire for an increased allocation, in addition to lacking in factual or legal support,” Garrard said in the filing, adding later, “To seek to disparage the work of the MDL that allowed it to achieve the very success in the courtroom that it touts throughout its response is the height of disingenuity.”
In an emailed statement, Specter said, “The fee committee’s response does not contradict a whit of our opposition to their request for a $550 million fee, which, if awarded, would unfairly treat the injured women. Instead, it tries to change the subject. The fee committee persists in withholding from the court, the injured women and their lawyers the precise number of cases that have been resolved and the precise per case average recoveries. The reason for this nondisclosure is simple: if revealed, these facts would confirm the failure of their performance.”
San Francisco attorney Rachel Abrams of Levin Simes Abrams, who is a member of the MDL’s leadership team, was also critical of Specter’s objection in a response filed Monday.
In making the argument that the settlements were too small to be rewarded with a 5 percent cut of all the plaintiffs’ recoveries, Specter had said that, while verdicts averaged $9.8 million, the settlements averaged about $40,000. Abrams, however, said the argument was not a good way to evaluate the works the firms did for the MDL’s common benefit.
“Every firm had the tools provided by the common benefit work product to negotiate the best settlements possible,” she said. “It is not the job of this court, or the participating firms, or Kline & Specter to engage in some sort of retrospective second-guessing of individual settlement values.”
But criticism of the fee request continued to mount Monday, as Aimee Wagstaff of the Colorado firm Andrus Wagstaff filed a response to the petition, saying that, since it is the client’s individual attorney who receives the benefit of the common benefit work, the money should be taken from the lawyer’s share, not the plaintiff’s.
“Any attempt to use monies contributed by the plaintiff’s/claimants’ recoveries to pay common benefit fees would constitute a wrongful diversion of client money and should not be sanctioned by the court,” Wagstaff said.
In the six-page filing, Wagstaff also said her firm was not being treated fairly by the fee and compensation committee. She cited one example where a member of the committee, Clayton Clark of Clark, Love & Hutson, requested his firm be paid $45.5 million, or more than $960 an hour, while he recommended her firm receive $8.7 million, which comes to nearly $295 an hour.
According to Wagstaff, two members of the committee also told her they did not think her firm was being treated fairly, and recommended she file an objection.
“Ms. Wagstaff was further told that the FCC had inflated its own awards because the satisfaction of any appeals ‘could only come from the awards recommended to FCC law firms,’” Wagstaff said in the filing.
“To date, this has not been a fair and equitable process and any effort to block an appeal is unjustified and should not be entered by this court,” Wagstaff said in the filing.
Neither Wagstaff, Garrard nor Clark returned a call seeking comment Tuesday.
https://www.law.com/thelegalintelligencer/2018/12/04/pelvic-mesh-mdl-leadership-defends-settlement-record-as-infighting-ramps-up/
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