Johnson & Johnson has lost its bid to have Philadelphia Judge Kenneth Powell removed from handling any future pelvic mesh trials in Philadelphia.
On Friday, the judge overseeing Philadelphia’s Complex Litigation Center declined to grant a motion by J&J subsidiary Ethicon, which had requested that Powell be barred from handling pelvic mesh trials because his mother is pursuing a lawsuit against another J&J subsidiary over the blood thinner Xarelto. The one-sentence order, entered by supervising Judge Arnold New, did not explain the reasoning behind the decision.
A spokeswoman for Ethicon, which is the primary defendant in nearly 100 pelvic mesh cases pending in Philadelphia, said in an emailed statement, “We’re disappointed by the decision, but we appreciate Judge New’s consideration of this matter.”
Kline & Specter attorney Shanin Specter, a lead attorney representing the plaintiffs in the consolidated pelvic mesh litigation, said in an emailed statement that the ruling was in line with decisions from other members of the judiciary, including the seven-member Pennsylvania Supreme Court, which denied a similar motion that Ethicon filed earlier in the month.
“That’s now 10 judges or justices who have refused Johnson & Johnson’s efforts to run the court system through their own brand of judicial selection,” he said. “But unfortunately I expect J&J to be undeterred and to foment more mischief. Meanwhile, we’ll just keep trying these important cases one at a time to whomever is assigned.”
Ethicon’s motions to have Powell removed come as juries in Philadelphia have repeatedly awarded plaintiffs multimillion-dollar verdicts over claims that the company failed to adequately warn about the dangers of pelvic mesh implants. Of those cases, Powell oversaw Emmett v. Ethicon, which ended in a $41 million verdict in January, and Carlino v. Ethicon, which resulted in a $13.5 million award in early 2016.
In its request to have Powell removed from hearing pelvic mesh cases, Ethicon contended that, not only was Powell’s mother pursuing a case against another J&J subsidiary, he also failed to properly disclose the lawsuit, or allow for full briefing on the issue. Citing the Pennsylvania Code of Judicial Conduct, Ethicon said that judges need to avoid conduct that “creates the appearance of impropriety,” and that there had been “a history of non-disclosure, of commentary and of rulings that create the appearance of bias and warrant recusal.”
The plaintiffs had responded by saying J&J was a “bully” and “a mass tortfeasor,” and the efforts to get Powell removed from cases “was beyond the bounds of fair advocacy.”
The dispute bares at least a passing resemblance to a situation that arose several years ago involving another judge who failed to disclose a close family member’s ties to a party in a case he oversaw. That judge was Allan Tereshko, and in 2011 he dismissed an insurance dispute without first disclosing to the parties that his wife was working in Post & Schell’s professional liability department at the time that Post & Schell was representing the defendant.
That situation resulted in a warning from a Superior Court majority, as well as a scorching concurring opinion from Superior Court Anne Lazarus, who said Tereshko not only prejudiced the parties but he also “failed in his professional responsibility as set forth in the Code of Judicial Conduct.” Tereshko resigned his position as a supervising judge a few days later.
Ethics attorneys who spoke with The Legal said there appeared to be possible similarities between the situations, but the issues surrounding when a judge needs to disclose or recuse are very fact-specific.
University of Pittsburgh School of Law professor Arthur Hellman said not immediately disclosing the lawsuit of a family member could be problematic.
“It’s not one of those things where I could say it’s too speculative, or too far from the realm of an arguable conflict,” he said.
Yale Law School lecturer Lawrence Fox, who said he could not comment about the specifics of the pelvic mesh situation without knowing all the details of the case, said that in general it is the judge’s responsibility to bring any potential issues to the parties’ attention.
“The emphasis is on disclosure,” Fox said. “Even if I think I shouldn’t recuse I should tell the parties what the issue is because they might come up with another argument.”
However, regarding the actual alleged conflict, Hellman said there appeared to be sufficient distance between the pelvic mesh cases Powell has tried and his mother’s lawsuit to make the recusal argument a “stretch.” He noted that even though both companies at issue are J&J subsidiaries there are corporate distinctions between the companies. He also said it did not appear that any of Powell’s rulings could affect either the Xarelto litigation broadly, or Powell’s mother’s case specifically.
“You would have to find some overlapping issues to say her interests would be affected to trigger an obligation to recuse,” Hellman said.