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Calling the defense counsel’s behavior “unjustifiable,” a West Virginia federal judge has sanctioned Drinker Biddle & Reath in the Ethicon transvaginal surgical mesh multidistrict litigation for continuing to remove cases filed in the Philadelphia Court of Common Pleas to the U.S. District Court for the Southern District of West Virginia despite the judge’s previous rulings that the cases belong in Pennsylvania state court.

In Wilson v. Ethicon Women’s Health and Urology, one of more than 18,000 cases assigned to U.S. District Judge Joseph R. Goodwin for the Southern District of West Virginia in the MDL, Goodwin said Drinker Biddle, as defense counsel for Ethicon, ignored his prior rulings in other cases that his court did not have federal question jurisdiction over the plaintiffs’ state-court claims.

“Ethicon’s continued removal of these cases ignores both prior decisions of this court and clearly established federal law,” Goodwin said. “Ethicon claims in its opposition to the motion to remand that ‘defendants have no desire to remove cases only to have them remanded or to relitigate issues already decided by the court.’ However, by removing cases with no ascertainable legal basis, that is exactly what the defendants are doing.”

Goodwin said Ethicon started removing cases based on the federal question jurisdiction theory only after he rejected their argument that the cases should be removed from Pennsylvania state court because another defendant, Perkasie, Pa.-based Secant Medical, had been fraudulently joined.

Goodwin said Ethicon has continued to remove cases based on the federal question jurisdiction argument even though he has issued several rulings rejecting that theory as well.

In an opinion and order issued Tuesday, Goodwin said Ethicon’s removal of the Wilson case violated Federal Rule of Civil Procedure 11, which requires lawyers to certify that their legal arguments “‘are warranted by existing law or by a nonfrivolous argument for extending, modifying or reversing existing law or for establishing new law.’”

Goodwin ordered Drinker Biddle to pay plaintiff Ann Wilson the attorney fees and costs she incurred in filing a motion to remand the case back to the Philadelphia trial court as well as an additional sanction equal to that amount.

The amount of the attorney fee award will be determined after the plaintiff files an accounting, Goodwin said.

“In this case, I do not believe that defense counsel’s actions were motivated by ignorance of the law,” Goodwin said. “These are competent attorneys who knew or should have known when the notice of removal was filed that their arguments were objectively unreasonable and had no chance of success. Defense counsel’s motives here seem to be calculated to keep these cases out of state court for as long as possible and to waste the court’s time and the plaintiff’s resources.”

According to Goodwin, Ethicon began removing cases from the Philadelphia trial court in the MDL last year, at first based on the argument that Secant had been fraudulently joined.

But in December 2013, Goodwin said, he issued an order finding that Secant had not been fraudulently joined and remanded three cases back to Pennsylvania state court.

Ethicon nevertheless continued to remove cases based on both the fraudulent joinder theory and the federal question jurisdiction theory, according to Goodwin.

In April, Goodwin said, he issued a ruling in Bisacca v. Ethicon Women’s Health and Urology that his court did not have federal question jurisdiction and reiterated his finding that Secant had not been fraudulently joined.

Goodwin said that was one of several rulings he issued rejecting Ethicon’s federal question jurisdiction argument.

Despite those decisions, Goodwin said, Ethicon removed the Wilson case, again attempting the federal question jurisdiction argument.

“In those cases, I rejected precisely the same arguments Ethicon now makes,” Goodwin said. “There is nothing new or exceptional in the instant matter that was not present in those earlier cases. To suggest that federal question jurisdiction exists over these state tort claims because of an affirmative defense ignores the very clear precedent to the contrary. Rehashing this same issue endlessly wastes the time of both the parties and the court, and cannot be casually overlooked.”

Goodwin said Ethicon based its argument “confusingly” on “some combination” of the Biomaterials Access Assurance Act of 1998, which provides immunity to biomaterials suppliers that provide components to medical device manufacturers, and the U.S. Supreme Court’s 2005 ruling in Grable & Sons Metal Products v. Darue Engineering & Manufacturing, which held that federal courts can have jurisdiction over some state law claims that implicate federal issues.

“This argument is entirely without merit,” Goodwin said. “Neither the BAAA nor Grable purported to change the longstanding rule that the basis for federal question jurisdiction must be found in the well-pleaded complaint.”

Despite the requirement that the basis for federal question jurisdiction appear in a well-pleaded complaint, Ethicon has argued that an affirmative defense can also trigger federal question jurisdiction, Goodwin said.

Goodwin said this argument has “‘absolutely no chance of success under the existing precedent,’” citing language from the U.S. Court of Appeals for the Fourth Circuit’s 2006 ruling in Morris v. Wachovia Securities.

“It cannot be said that a reasonable attorney in like circumstances would have thought his actions were legally justified,” Goodwin said. “It is a basic concept taught in the first year of law school that the basis for federal question jurisdiction must be found on the face of the well-pleaded complaint.”

Counsel for Ethicon, Kenneth A. Murphy of Drinker Biddle in Philadelphia, did not immediately respond to a call seeking comment.

Counsel for Wilson, Lee B. Balefsky of Kline & Specter in Philadelphia, said Goodwin’s opinion “speaks for itself.”

“He was obviously fed up with Ethicon’s constant removal of cases on issues that he had previously clearly decided and I’m hoping this ends the string of unnecessary removals and wastes of time,” Balefsky said.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI. 

(Copies of the nine-page opinion in Wilson v. Ethicon Women’s Health and Urology, PICS No. 14-0753, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)