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Companies Battle Over Indemnification in Pelvic Mesh MDL
Mar 3, 2015 | New Jersey Law Journal
By Charles Toutant
Facing multidistrict litigation over its Uretex Sling pelvic mesh product, medical device maker C.R. Bard is claiming in federal court in Newark that the product’s French supplier breached a contractual obligation to indemnify it. -
Federal judge remands pelvic mesh case to Madison County; Mudge to hear motions to dismiss March 26
Mar 3, 2015 | The Madison-St.Clair Record
A medical products manufacturer accused in a lawsuit alleging its pelvic repair system migrated in a patient’s body sought to remove the case to federal court in an effort to group it with similar cases in Multidistrict Litigation (MDL) court. -
J&J Cements Bellwether Win in Pelvic Mesh Cases
Mar 3, 2015 | The Litigation Daily
By Susan Beck,
Over the past three years Johnson & Johnson has spent more than $3.4 billion litigating cases involving its medical devices -
Link: Scottish Parliament Proceedings
Mar 3, 2015 | BBC Reporting Live
Link to the Scottish Parliament proceedings -
Bellew v. Ethicon Federal Pelvic Mesh Trial Begins in Charleston, WV
Mar 3, 2015 | Mesh Medical Device News Desk
By Jane Akre
...Judge Joseph Goodwin is presiding over Dianne M. Bellew v. Ethicon. Ms. Bellew is from Arizona and was implanted with an Ethicon Prolift in July 2009 in Northwest Medical Center in Tucson, Arizona...
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Companies Battle Over Indemnification in Pelvic Mesh MDL
Mar 3, 2015 | New Jersey Law Journal
By Charles Toutant
Facing multidistrict litigation over its Uretex Sling pelvic mesh product, medical device maker C.R. Bard is claiming in federal court in Newark that the product’s French supplier breached a contractual obligation to indemnify it.
Meanwhile, the supplier, Sofradim Production of Trevoux, France, has filed cross-claims alleging it is actually owed a duty of indemnity by Bard.
Bard has asked the court to find that Sofradim is obligated to defend it against any past, present or future claims related to injuries from the product under a 2002 contract giving Bard the right to sell the product in the United States and Canada. Bard sued Sofradim in state court in Union County, New Jersey, on Jan. 22, and the French company removed the case to federal court on Feb. 26.
Bard, based in New Providence, New Jersey, contends that the litigation by users of the product arises from the use or sale of the product, which makes Sofradim liable under the contract. Sofradim, for its part, contends that the core allegations concern Bard’s negligence in its development, design, labeling, storing, handling, promoting, advertising or distributing of the product, which are Bard’s responsibilities under the contract.
The Uretex Sling, which is used for surgical treatment of incontinence in women, has been linked to complications such as chronic pain, inflammation and adverse reactions. Suits related to the Uretex Sling and other surgical devices for incontinence treatment in women have been consolidated by the Judicial Panel for Multidistrict Litigation in the Southern District of West Virginia.
Sofradim has brought cross-claims in the MDL seeking a declaration that the 2002 contract absolves it of the duty to defend Bard from its willful default or negligence, and that Bard has a duty to defend and indemnify Sofradim from the suits.
As of Feb. 9, products liability suits involving claims by approximately 14,090 plaintiffs concerning Bard’s surgical incontinence products for women have been filed against the company in various federal and state courts, the company said in its most recent 10-K filing with the U.S. Securities and Exchange Commission. The company did not break down how many of those cases involve products made by Sofradim. In addition, five putative class actions in the United States and four others in Canada that relate to the company’s surgical incontinence products are pending, the company said. None of those actions has been certified. On top of that, approximately 1,800 claims have been threatened against the company but have not been filed, the company filing said.
A judgment of $3.6 million was entered against the company by a California court in July 2012 in the first state court case involving Bard incontinence products, the company said in its 10-K. An appellate court affirmed the decision in November 2014, and the company has petitioned for review by the California Supreme Court.
The first trial in the MDL resulted in a $2 million judgment against Bard. That decision is on appeal.
The suits against Bard and Sofradim over the Uretex product generally seek medical monitoring, compensatory and punitive damages, a judicial finding of defect and causation, and attorney fees.
Vito Pinto of Lindabury, McCormick, Estabrook & Cooper in Westfield, New Jersey, representing Bard, did not return a call about the case, nor did Sofradim’s lawyers, William O’Kane Jr. of Archer & Greiner in Haddonfield, New Jersey, and Marshall King of Gibson, Dunn & Crutcher in New York.
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Federal judge remands pelvic mesh case to Madison County; Mudge to hear motions to dismiss March 26
Mar 3, 2015 | The Madison-St.Clair Record
A medical products manufacturer accused in a lawsuit alleging its pelvic repair system migrated in a patient’s body sought to remove the case to federal court in an effort to group it with similar cases in Multidistrict Litigation (MDL) court.
Plaintiffs Anita and Kevin Zurliene filed the Aug. 29 complaint against Dr. Demetrios Katsikas, Boston Scientific Corporation and Urology Consultants, LTD.
According to the complaint, Anita L. Zurliene claims she suffered damages when a transobturator tape migrated within her body. The tape had been placed inside her on Oct. 22, 2012, to treat stress and urgency urinary incontinence.
As a result of the alleged incident, she experienced constant pain and suffering, lost her enjoyment of a normal life, incurred medical costs and lost wages, the suit states.
She blames Katsikas and Urology Consultants for contributing to her injuries, saying they negligently failed to inform her that the tape could migrate and cause her injuries.
She also accuses Boston Scientific for manufacturing the alleged defective product.
Boston Scientific removed the case to the Southern District of Illinois on Nov. 20, arguing that the case is one of thousands of product liability cases involving the defendant and other manufacturers of transvaginal mesh that have been filed in or removed to federal court. In February 2012, an MDL involving Boston Scientific pelvic repair system products liability was created and all pending cases were transferred to Judge Joseph R. Goodwin’s courtroom in the Southern District of West Virginia.
However, on Dec. 19 federal judge Staci M. Yandle granted the plaintiffs’ request to remand the case back to the circuit court, concluding that Boston Scientific failed to meet its burden of establishing diversity of citizenship.
Boston Scientific filed a motion to dismiss on Jan. 16 for failure to properly plead a manufacturing or warning defect claim.
“Plaintiffs have not pled a manufacturing defect because Plaintiff failed to allege that the product in question deviated from its intended design,” the motion states.
The defendant also argues that the plaintiffs failed to properly plead a design defect claim, because “a plaintiff is precluded from asserting a strict liability design defect claim against the manufacturer of an ‘unavoidably unsafe’ product. Boston Scientific added that the plaintiffs failed to establish the existence of an alternative design.
Katsikas and Urology Consultants filed a motion to dismiss on Oct. 8 for failure to state a claim based on alleged medical malpractice for lack of informed consent.
They argue that the plaintiffs failed to adequately plead that the defendants had a duty to disclose material risks, failed to adequately plead that the physician failed to disclose the alleged material risks and failed to adequately plead that the plaintiff would not have consented to the procedure if the material risks had been disclosed.
In the alternative, the defendants argue the plaintiffs should be required to provide specific allegations for their medical malpractice claims.
Circuit Judge William Mudge scheduled a motion hearing to address the defendants’ motions to dismiss for March 26 at 1 p.m.
The plaintiffs seek a judgment of more than $300,000 plus costs.
Joseph A. Bartholomew of Cook, Ysura, Bartholomew, Brauer and Shevlin in Belleville represents the plaintiffs.
W. Jason Rankin of HeplerBroom in Edwardsville represents Boston Scientific.
Michael R. Barth of Williams Venker & Sanders LLC in St. Louis represents Urology Consultants and Katsikas.
Madison County Circuit Court case number 14-L-1911
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J&J Cements Bellwether Win in Pelvic Mesh Cases
Mar 3, 2015 | The Litigation Daily
By Susan Beck,
Over the past three years Johnson & Johnson has spent more than $3.4 billion litigating cases involving its medical devices. At least some of that investment continues to pay off, as earlier this week the company again defeated an early test case involving one of its most embattled products.
Subscription required please see link for full article: http://www.litigationdaily.com/id=1202719505139/JJ-Cements-Bellwether-Win-in-Pelvic-Mesh-Cases#ixzz3TObBeiGJ -
Link: Scottish Parliament Proceedings
Mar 3, 2015 | BBC Reporting Live
Topical Questions were posed my Jenny Marra in Scottish Parliament. Health Minister Shona Robinson responded which also sparked comment from Neil Findlay and Jackson Carlaw.
The proceedings were covered by BBC Reporting Live See here - http://www.bbc.com/news/live/uk-scotland-scotland-politics-31693862
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Bellew v. Ethicon Federal Pelvic Mesh Trial Begins in Charleston, WV
Mar 3, 2015 | Mesh Medical Device News Desk
By Jane Akre
In Charleston, West Virginia, a bellwether trial began Monday March 2, in the ongoing federal pelvic mesh litigation being held in that courtroom. Judge Joseph Goodwin is presiding over Dianne M. Bellew v. Ethicon. Ms. Bellew is from Arizona and was implanted with an Ethicon Prolift in July 2009 in Northwest Medical Center in Tucson, Arizona. There is no spouse named.
Mesh News Desk is not present for this federal trial as we have been for C. Lewis and J. Huskey, both Ethicon cases.
Her case was transferred into federal multidistrict litigation where there are currently 24,388 filed product litigation cases filed that name Ethicon, a division of Johnson & Johnson and an allegedly defective pelvic mesh implant.
Dr./ Piet Hinoul, Ethicon, from Gross trial
The Prolift case of Joan Budke concluded in Camden Co. Missouri last month with an undisclosed settlement to the family of the late Ms. Budke. The implanting surgeon in the Bellew case is Carol Dehasse, MD.
Attorneys for Ms. Bellew are Ben Anderson, Anderson law, and Adam Slater of Mazie, Slater, Katz & Freeman.
Slater and Anderson were plaintiffs’ attorneys in the Budke case as well, however, this time Anderson is the lead attorney.
Ethicon is facing counts of Negligence, Manufacturing Defect, Failure to Warn, Defective Product, Common Law Fraud, Fraudulent Concealment, Negligent Misrepresentation, Constructive Fraud, Negligent Infliction of Emotional Distress, Breach of Express Warranty, Breach of Implied Warranty, Violation of Consumer Protection Laws, Gross Negligence, Unjust Enrichment and Punitive Damages.
Her case was filed in the Charleston federal court July 13, 2013.
Prolift is no longer on the market. It was sold as an entire kit, complete with stainless steel trocars to implant the mesh in the pelvic floor to treat pelvic organ prolapse. It is one of the largest meshes ever made and has been called overengineered for its purpose. The mesh arms of a Prolift, used to secure it deep into tissue, are very difficult if not impossible to remove, according to mesh removal doctors. #
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