Philadelphia juries have hammered Johnson & Johnson subsidiary Ethicon with more than $345 million in verdicts over its pelvic mesh products, and now another wave of litigation is coming to Pennsylvania.
Late last month, the judge overseeing the multidistrict litigation in West Virginia federal court transferred dozens of cases back to their home districts across the country, with the largest batch of lawsuits—nearly 20—ending up in Pennsylvania federal court. Since the April 26 transfer, defendants have sought to toss some cases, and in others judges have begun entering scheduling orders, complete with 2020 trial dates.
Kline & Specter attorney Shanin Specter, a leading attorney in the pelvic mesh litigation whose firm tried each successful case in Philadelphia, said he expects the federal cluster of cases will move quickly to trial.
“The judges right now are scheduling conferences in the cases,” he said. “We expect, particularly given how quickly judges in this district move their dockets, that there will be some additional discovery done in a brief time, and there will be prompt trial listings.”
Mindy Tinsley, a spokeswoman for Ethicon, said in an emailed statement, “We look forward to defending these cases in federal court.”
U.S. District Judge Joseph Goodwin of the Southern District of West Virginia transferred a wave of nearly 50 cases out of the MDL last month. Of those cases, 18 cases were sent to Pennsylvania federal courts, with 16 going to the U.S. District Court for the Eastern District of Pennsylvania and two going to the Western District.
The pelvic mesh MDL, which once included more than 100,000 cases pending against six defendants, stood at about 15,000 cases as of mid-May. According to Goodwin’s order, plaintiffs in the majority of remaining cases have settled, but “thousands remain languishing” in the court.
“For convenience of the parties and in order to promote the final resolution of these cases, it appears to the court that the cases would be more expeditiously concluded in the jurisdiction from which they originally came to this court,” Goodwin said.
Along with sending nearly 20 cases to Pennsylvania in his first wave of transfers, Goodwin also sent cases to Connecticut, New York, Texas, California, Georgia and other states.
Although federal juries have awarded juries significant verdicts over the allegedly dangerous products, the largest verdict in the litigation so far was handed up by a Philadelphia state court jury late last month. The case, McFarland v. Ethicon, ended with a $120 million verdict, including $100 million in punitive damages. The judge who oversaw the trial denied Ethicon’s post-trial motions Monday.
The McFarland verdict was followed up less than a month later with an $80 million verdict for a Pennsylvania woman. McFarland was also preceded by a $41 million verdict in January. All three cases were tried before a Philadelphia state court jury.
Ethicon has won two defense verdicts in the litigation, with the latest coming in mid-April. The first defense win, however, was later reversed by the trial court, after the judge who oversaw the case determined that the jury’s findings were inconsistent on the issue of whether the alleged design defect caused the injuries. The judge ultimately determined that the case should proceed to a damages hearing, but that decision is currently on appeal to the Pennsylvania Superior Court.
A significant difference between state and federal trials is the jury pool. While the Philadelphia Court of Common Pleas pulls jurors from around the city, the Eastern District jury pool includes jurors from as far west as Lancaster County and as far north as Northampton County.
Specter said he did not expect the trials in federal courts to be substantially different than those that have taken place in state court because Philadelphia’s trial judges largely modeled their rulings off of Goodwin’s decisions.
“We’ve now had nine trials, our firm. Eight victories, seven of those involved the imposition of punitive damages. Even the ninth case, the jury found negligence,” Specter said. “There’s an overwhelming message that’s being transmitted by eight separate juries, really nine separate juries, that the company has acted very badly, and it’s disturbing that the mesh products for stress urinary incontinence are still on the market.”
However, before any of the federal trials get underway, one pelvic mesh case is scheduled to come before another Philadelphia jury in early June, and another wave of state court cases are set to be tried in state court in the fall.