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.”