A three-judge Superior Court panel on Wednesday determined that ties between Ethicon, a J&J subsidiary that is the main defendant in the pelvic mesh litigation in Philadelphia, and Secant, a Pennsylvania-based company that was involved in manufacturing the mesh product at issue, were sufficient to establish jurisdiction in the Keystone State in the wake of recent U.S. Supreme Court precedent affecting jurisdiction for out-of-state plaintiffs. The decision affirmed a ruling from the Philadelphia Court of Common Pleas.
The Superior Court’s unanimous ruling relied heavily on a decision the court made last year in Hammons v. Ethicon, which is another pelvic mesh case. That ruling from June was also the first instance that a Pennsylvania appellate court waded into the effects of the U.S. Supreme Court’s high-profile 2017 decision in Bristol-Myers Squibb v. Superior Court of California, which made clear that out-of-state plaintiffs can’t sue companies where the defendants aren’t considered to be “at home,” or haven’t conducted business directly linked to the claimed injury.
A key part of Ethicon’s argument regarding jurisdiction was that it had a limited contractual relationship with the Bucks County-based company Secant, which manufactured and then supplied to the defendant the Prolene filaments Ethicon used to create the allegedly problematic pelvic mesh products.
But, relying on Hammons, Superior Court Judge Paula Francisco Ott said Wednesday in the court’s 14-page opinion in In re Pelvic Mesh Litigation that evidence showed Ethicon took a “hands-on approach” in dealing with Secant, providing detailed specifications for knitting the mesh and traveling to Pennsylvania to observe the mesh-making process.
“The design of the mesh, and in particular its inelasticity, is an important issue in this litigation,” Ott said. “Ethicon’s direct oversight of the knitting of the mesh in Pennsylvania, coupled with its reliance on clinical studies performed by a Pennsylvania gynecologist, is sufficient to bring Ethicon within the jurisdiction of this commonwealth.”
Ethicon is facing about 90 lawsuits in Philadelphia, where the company has been repeatedly hit with multimillion-dollar verdicts, including the $12.85 million awarded in Hammons and a $41 million verdict awarded in January in Emmett v. Ethicon.
The decision marks the third time the Superior Court has addressed whether the out-of-state claims should be dismissed from Pennsylvania for lack of jurisdiction. Along with the Hammons ruling, the court also addressed the question in Carlino v. Ethicon. Appeals in both of those cases are pending before the Pennsylvania Supreme Court.
In an emailed statement, Shanin Specter of Kline & Specter, who is representing the plaintiffs, referred to Ethicon’s recent unsuccessful efforts to have the judge who presided over several trials, including Emmett, removed from handling pelvic mesh cases.
“We are gratified by the Superior Court’s reconfirmation of jurisdiction,” Specter said, but added he and his clients “remain concerned” by what they view as “Johnson & Johnson’s repeated judge-shopping and court-shopping.”
An Ethicon spokeswoman did not return a message seeking comment.