Boston Scientific Pelvic Mesh Plaintiffs Agree to Move Lawsuits from Philadelphia, As Ethicon Plaintiffs Push Back on Johnson & Johnson’s Venue Challenge

Published on September 12, 2017 by Sandy Liebhard

Plaintiffs who had been pursuing pelvic mesh lawsuits against Boston Scientific in a mass tort program currently underway in the Philadelphia Court of Common Pleas have agreed to remove their claims from Pennsylvania.

Disputes over the proper venue for transvaginal mesh claims continue, however, after Johnson & Johnson’s filed its own motion to have claims involving Ethicon pelvic mesh products removed from Philadelphia.

Supreme Court Decision Behind Transvaginal Mesh Venue Disputes

The venue disputes that have erupted in Pennsylvania are the result of the U.S. Supreme Court’s recent ruling in Bristol-Myers Squibb v. Superior Court of California, which limited plaintiffs to filing suit in jurisdictions where defendants are headquartered or where a plaintiffs’ injuries are alleged to have occurred.

Over the summer, Boston Scientific and Johnson & Johnson each cited Bristol-Myers Squibb in their motions for removal. In July, plaintiffs in the three Boston Scientific cases agreed to litigate their claims in Massachusetts, where Boston Scientific is headquartered, or Delaware, where the company is incorporated.

Judge Agrees to Reconsider Ethicon Jurisdiction

The majority of transvaginal mesh lawsuits pending in Philadelphia involve devices manufactured by Johnson & Johnson’s Ethicon, Inc. subsidiary. According to The Legal Intelligencer, Judge Arnold New granted a defense motion that sought to revisit the state court’s jurisdiction in the Ethicon cases.

In 2015, the Court ruled that that the cases should be tried in Philadelphia. However, that ruling predated Bristol-Myers Squibb, prompting Judge New to call for additional briefing in light of the Supreme Court’s decision.

Attorneys representing Ethicon pelvic mesh plaintiffs filed their response to the latest removal motion on September 7^th, asserting that Ethicon worked extensively in Pennsylvania when designing, testing and manufacturing the transvaginal mesh products at the center of their lawsuits, citing the company’s relationship with the Bucks County-based manufacturer, Secant Medical. Among other things, the brief noted that:

• Secant offers had testified that Ethicon provided Secant with specifications about the mesh and directed Secant’s production of the mesh, as well as tested the resulting samples.
• Ethicon employees traveled to Pennsylvania to meet with Secant officials, and observe the manufacturing.

“Ethicon’s activities in Pennsylvania relating to Secant cannot be parsed out of the story for jurisdictional purposes,” the plaintiffs’ brief stated. “Ethicon’s Pennsylvania activities lie at the heart of the litigation. Therefore, Ethicon is subject to Pennsylvania’s specific jurisdiction.”

“If Ethicon’s contacts and affiliations with Pennsylvania as to its transvaginal mesh products are insufficient to satisfy even the bare minimum of due process, then no contacts would be sufficient except where the plaintiff is a resident of Pennsylvania,” the brief continued.

Pennsylvania Ethicon Pelvic Mesh Verdicts

Johnson & Johnson and Ethicon have been named defendants in more than 55,000 pelvic mesh lawsuits now pending in state and federal courts nationwide. So far, the Philadelphia mass tort program has convened six trials involving the company, five of which concluded with verdicts in favor of plaintiffs.

Just last week, a woman who had received two of Ethicon’s TVT implants was awarded more than $57 million – including $50 million in punitive damages – from the Philadelphia jury hearing her case.

Four previous Ethicon plaintiffs were awarded damages of $2.16 million, $12.5 million, $13.5 million and $20 million

The defendants’ sole victory came in June. However, the Court recently granted the plaintiff’s pretrial motion for a new hearing on damages, which argued that jury’s decision to deny her damages was inconsistent with the evidence presented at trial.