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Ethicon Media Monitoring 3/15/2019
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J&J loses bid to remove Philadelphia judge from pelvic mesh case, but another try is pending
Mar 14, 2019 | The Legal Intelligencer
By Max Mitchell
The Pennsylvania Supreme Court has denied Johnson & Johnson’s request to remove a Philadelphia judge from a pelvic mesh trial, but the pharmaceutical giant still has a request pending that seeks to boot the same judge from the pelvic mesh mass tort entirely. -
Ex-Client Sues Houston PI Firm for 'Secret Arrangement' With Other Firm
Mar 14, 2019 | Texas Lawyer
By Brenda Sapino Jeffreys
A Plano woman sued Houston personal injury lawyer Howard Nations and his firm, alleging they shorted her on money from her settlement in vaginal mesh litigation and involved another firm without her permission. -
EU Regulatory Roundup: UK Industry and Lords Criticize No-Deal Preparations
Mar 14, 2019 | Regulatory Focus
By Nick Paul Taylor
The step up in clinical data requirements triggered by incoming medical device regulations has led C.R. Bard to withdraw its urogynecological mesh from the EU. Bard thinks the devices, which are the focus of regulatory investigations and thousands of lawsuits, are safe but commercially unattractive in light of the new rules.
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J&J loses bid to remove Philadelphia judge from pelvic mesh case, but another try is pending
Mar 14, 2019 | The Legal Intelligencer
By Max Mitchell
The Pennsylvania Supreme Court has denied Johnson & Johnson’s request to remove a Philadelphia judge from a pelvic mesh trial, but the pharmaceutical giant still has a request pending that seeks to boot the same judge from the pelvic mesh mass tort entirely.
The high court recently denied a motion that Ethicon, a subsidiary of J&J, filed seeking to have the justices use their King’s Bench jurisdiction to remove Judge Kenneth Powell from hearing the case McFarland v. Ethicon, which is currently ongoing.
Ethicon, which is the primary defendant in nearly 90 cases pending in Philadelphia, made the motion last week based on arguments that Powell’s mother is currently suing another J&J subsidiary over the blood thinner Xarelto. According to the company, Powell failed to properly disclose his mother’s lawsuit until after he presided over one trial and was assigned to handle another.
Although the justices issued a one-page per curiam order Tuesday denying Ethicon’s motion, the company has a similar motion pending before the Philadelphia judge who supervises the First Judicial District’s mass tort programs. That motion points to the same fact pattern regarding the lawsuit Powell’s mother filed and seeks to ensure that the judge is not assigned to any further pelvic mesh trials.
“Because this court is responsible for judicial assignments in the mass tort program, and because Judge Powell has repeatedly denied the defendants’ motions to recuse himself from presiding over trials within this mass tort in which he has given the appearance of or exercised bias, defendants respectfully request that this court reassign Judge Powell from McFarland and not assign Judge Powell to these cases in the future,” Alicia Hickok of Drinker Biddle & Reath wrote in the eight-page motion filed on behalf of Ethicon on March 7.
McFarland is one out of nearly 90 cases pending in the consolidated Philadelphia mass tort program and more than 33,000 pending across the country. The cases all stem from pelvic mesh devices and allegations that the mesh-makers failed to properly warn about the risks of the devices. Many of the cases that have gone to trial in Philadelphia resulted in multimillion-dollar verdicts, including Hammons v. Ethicon, which resulted in a $12.5 million verdict in 2015, and Emmett v. Ethicon, which ended in a $41 million verdict in January.
McFarland was initially tried last year before Judge Michael Erdos, but the case ended in September with a hung jury. The new trial began this week.
According to Ethicon’s motions, Powell has tried three cases involving pelvic mesh products, and, while the post-trial motions stemming from the first pelvic mesh trial he presided over were pending in 2016, his mother filed her lawsuit. Ethicon contended it was not made aware of the lawsuit while Powell presided over a second trial in May 2017, and was only made aware of the lawsuit shortly before Powell was assigned to handle a third case.
Ethicon contended that, after learning about the suit, it sought Powell’s recusal, but the judge denied the request, saying he could still handle the case fairly. The company filed another motion for recusal after Powell was assigned to handle Emmett, but that was also denied—according to Ethicon, “without full briefing or argument.”
Ethicon cited the Pennsylvania Code of Judicial Conduct saying judges need to avoid conduct that “creates the appearance of impropriety,” and said the failure to disclose the lawsuit while handling post-trial motions and presiding over a trial warranted recusal.
“In these proceedings there has been a history of non-disclosure, of commentary and of rulings that create the appearance of bias and warrant recusal,” Ethicon said.
The plaintiffs have not yet responded to the motion pending in Philadelphia Court of Common Pleas, but in their motion asking the Supreme Court to reject Ethicon’s King’s Bench petition, they contended that another Philadelphia judge considered the issue earlier this month and rejected Ethicon’s recusal arguments.
The plaintiffs also said Powell brought the issue up to New once he learned about the suit.
“Judge Powell disclosed the lawsuit when he learned about it,” the plaintiff’s motion, filed by Kline & Specter attorney Charles “Chip” Becker, said. “At every turn, his actions have been reasonable and within the scope of his discretion.”
Kline & Specter attorney Shanin Specter, who is a lead attorney representing plaintiffs in the litigation and tried several cases to multimillion-dollar verdicts, was more critical. In an emailed statement Thursday, he said J&J is a “bully” and “a mass tortfeasor.”
“Their contemptible motion in the Supreme Court was beyond the bounds of fair advocacy. It disparaged one of the most highly regarded trial judges in Pennsylvania and was an assault on the independence of the judiciary,” he said. “It is also another example of judge shopping by Johnson & Johnson, which is currently seeking the same relief from Supervising Judge New.”
A spokeswoman for Ethicon said in an emailed statement that the company “is exercising its legal rights in a manner that is lawful, appropriate and justified.”
https://www.law.com/thelegalintelligencer/2019/03/14/jj-loses-bid-to-remove-phila-judge-from-pelvic-mesh-case-but-another-try-is-pending/
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Ex-Client Sues Houston PI Firm for 'Secret Arrangement' With Other Firm
Mar 14, 2019 | Texas Lawyer
By Brenda Sapino Jeffreys
A Plano woman sued Houston personal injury lawyer Howard Nations and his firm, alleging they shorted her on money from her settlement in vaginal mesh litigation and involved another firm without her permission.
Sharyn Joy Teitelbaum alleges in a petition filed Wednesday in state district court in Houston that Nations Law Firm made a “secret arrangement” with South Carolina firm Motley Rice to attempt to settle her lawsuit, without informing her in advance. She also alleges that certain deductions from her settlement were unexpected.
“The deductions included deductions for certain fees and expenses that plaintiff had not agreed to pay, including both unexplained expenses and attorneys’ fees that included money for Motley Rice,” Teitelbaum alleges in the petition.
Nations did not immediately return a telephone call seeking comment on the allegations.
Motley Rice, which is not a defendant to Teitelbaum’s claims, has settled thousands of transvaginal mesh suits, both for individuals and as settlement counsel working with other firms in multidistrict litigation. The firm did not immediately respond to a request for comment.
Cris Feldman, a partner in Feldman & Feldman in Houston who represents Teitelbaum, declined comment on the case.
Teitelbaum brings breach of fiduciary duty and professional negligence causes of action against Nations and his firm, and seeks up to $1 million in damages including actual damages, punitives and fee forfeiture.
As alleged in Teitelbaum v. Nations, Teitelbaum entered into a contract with Nations Law Firm on Oct. 13, 2014, to prosecute all claims arising from medical problems she suffered after receiving a pelvic mesh implant in 2009.
She alleges the contract provided for a 40 percent contingency fee, and of that amount 40 percent would go to Nations Law Firm and 60 percent to Levin Papantonio Thomas Mitchell Rafferty & Proctor, a personal injury firm in Pensacola, Florida. However, after she signed the contract, Teitelbaum alleges, Levin Papantonio notified her that it could not represent her in the litigation, and Nations Law Firm said it would continue to represent her.
“NLF [Nations Law Firm] did not seek or obtain plaintiff’s consent to receive any fee other than the 40 percent of the original 40 percent provided for in the attorney-client contract—or a total of 16 percent of any amount collected, as provided in the contract,” she alleges in the petition.
Teitelbaum claims that without her knowing, Nations Law Firm made a “secret arrangement” with Motley Rice to “lump plaintiff’s case together with 749 other cases to attempt to negotiate a settlement on behalf of plaintiff and other unidentified clients.”
She alleges the Nations firm did not inform her about its “dealings with Motley Rice.” Only when the firm forwarded her portions of a settlement agreement, in March 2017, did she learn of Motley Rice’s involvement, her petition said.
When she asked the firm who Motley Rice was, “a legal assistant vaguely responded that ‘There were multiple firms involved in this settlement, and for ease of administration, it goes through one firm (Motley Rice),’” the petition said.
Teitelbaum alleges Nations Law Firm never asked or received her permission to have Motley Rice represent her.
She alleges Nations Law Firm refused to give her the opportunity to review all of the settlement documents, but she “acquiesced” to the firm’s “advice and coercion” and signed the settlement agreement.
“When NLF sent plaintiff a settlement check, it was for less than the settlement amount shown in the documents that she had reviewed,” the plaintiff alleges, adding that the settlement disbursement sheet included attorney fees for Motley Rice, an MDL fee assessment and case-specific and general expenses.
“NLF had never before told plaintiff that she would have to pay such expenses, and she did not agree to do so,” she alleges.
Still, Teitelbaum alleges, Nations Law Firm has not fully complied with her request to provide her with a complete copy of the settlement documents and communications it had with Motley Rice about her lawsuit.
The petition alleges that Nations Law Firm breached its duty to Teitelbaum by agreeing to divide fees and then dividing them with Motley Rice without her knowledge or consent; negotiating a global settlement without her informed consent and taking more than the 40 percent of the fees that the contract stated for attorney fees; and deducting “improper expenses” and attorney fees from her settlement money.
Teitelbaum has also accused the defendants of violating several Texas Disciplinary Rules of Professional Conduct.
https://www.law.com/texaslawyer/2019/03/14/ex-client-sues-houston-pi-firm-for-secret-arrangement-with-other-firm/
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EU Regulatory Roundup: UK Industry and Lords Criticize No-Deal Preparations
Mar 14, 2019 | Regulatory Focus
By Nick Paul Taylor
Incoming EU Medical Device Regulations Prompt Bard to Withdraw Products
The step up in clinical data requirements triggered by incoming medical device regulations has led C.R. Bard to withdraw its urogynecological mesh from the EU. Bard thinks the devices, which are the focus of regulatory investigations and thousands of lawsuits, are safe but commercially unattractive in light of the new rules.
Today, Bard’s mesh devices, like many implants, are categorized as Class IIb devices in the EU. That will change next year when the new EU medical device regulations come into force. The rules single out surgical meshes as a type of device that falls into Class III.
Manufacturers of devices moved into the high-risk Class III by the legislation will need to carry out clinical investigations of their devices unless they already possess sufficient data or are otherwise exempt from the requirements. That will require investment that Bard, a subsidiary of BD, thinks is better spent elsewhere.
The decision likely reflects both the cost of generating the clinical data and diminishing opportunities to generate a return on the outlay. The market for urogynecological mesh has contracted on the back of reports of complications in patients undergoing treatment for stress urinary incontinence and pelvic organ prolapse.
In the United States, which moved mesh devices into Class III in 2016, Boston Scientific and Coloplast are the only companies trying to meet the higher evidence bar needed to stay on the market.https://www.raps.org/news-and-articles/news-articles/2019/3/eu-regulatory-roundup-uk-industry-and-lords-criti
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