Pelvic mesh

The judge overseeing the pelvic mesh mass tort in Philadelphia has agreed to reconsider the state court’s jurisdiction over 91 cases pending in the venue.

Philadelphia Court of Common Pleas Judge Arnold New recently granted defendant Johnson & Johnson’s motion that sought to revisit the state court’s jurisdiction over numerous cases in the mass tort program in the wake of the U.S. Supreme Court’s game-changing decision in Bristol-Myers Squibb v. Superior Court of California. New’s decision, made public last week, is the first and so far only bid to have Bristol-Myers applied to a Philadelphia mass tort program.

In its June ruling in Bristol-Myers Squibb, the Supreme Court made clear that out-of-state plaintiffs can’t sue companies in states where the defendants aren’t considered to be “at home,” or haven’t conducted business directly linked to the claimed injury. The ruling was widely seen as a game-changing decision that promised to reshape the geography of mass tort litigation across the country.

A spokeswoman for Ethicon said in an emailed statement, “We are pleased that Judge New has called for briefs on this very important issue.”

Kline & Specter attorney Shanin Specter, who is a lead attorney representing plaintiffs, said in an emailed statement that he is confident Pennsylvania continues to have jurisdiction over Ethicon, a Johnson & Johnson subsidiary. He added that the Bristol-Myers Squibb ruling restated precedent outlined in the Supreme Court’s 2014 decision in Daimler v. Bauman, which New initially relied on when he ruled on jurisdiction in 2015.

“The basis for jurisdiction against Ethicon in Pennsylvania is even stronger now than when Judge New first denied Ethicon’s objections to jurisdiction, because of additional evidence of Ethicon’s already substantial and specific conduct within the commonwealth in relation to the development and marketing of transvaginal mesh, which we’ll provide to the court,” he said.

New issued the ruling Aug. 1, and the six-page order was made public Aug. 2. The order vacated a ruling from March 2015 that found Philadelphia had jurisdiction over the cases, and called for more briefing on the issue to be submitted to the court over the next month.

The ruling came several weeks after plaintiffs in three pelvic mesh cases pending in Philadelphia agreed to move their lawsuits against another pharmaceutical company to state court venues outside Pennsylvania. That defendant, Boston Scientific, had raised similar jurisdictional challenges related to Bristol-Myers Squibb.

According to New’s Aug. 1 order, the plaintiffs in the cases against Ethicon hale from as close as New Jersey and as far away as California, with their surgeries to implant the mesh devices having taken place in states across the country as well.

In its motion to have the initial ruling on jurisdiction vacated, Ethicon, which is being represented by Drinker Biddle & Reath attorney Kenneth Murphy, said it and its parent company, J&J, are incorporated and have their principal places of business in New Jersey. The motion further noted that, soon after the Bristol-Myers Squibb ruling, a judge in Missouri state court ordered a mistrial in a products liability case that had been brought by a nonresident plaintiff against a company that was not at home in the venue.

According to the court’s most recent statistics, the pelvic mesh mass tort grew 7 percent in the past year, rising from 164 to 176.