Attorneys have characterized the recent U.S. Supreme Court decision in Bristol-Myers Squibb v. Superior Court of California as game-changing for mass tort programs in state court, but lawyers for more than 90 plaintiffs suing Johnson & Johnson over its pelvic mesh products have said in court papers the ruling should not affect the mass tort program pending in Philadelphia.
Lead attorneys in the mass tort program filed their response Sept. 7 to J&J’s recent bid to get most cases pending against it in Pennsylvania removed from Philadelphia Court of Common Pleas.
The response, filed by Kline & Specter attorney Charles “Chip” Becker, said that, although the Bristol-Myers decision is significant as it is the Supreme Court’s first time dealing with specific jurisdiction for mass torts, it does not change the law, or alter the defendant’s underlying conduct in Pennsylvania.
“Our brief makes clear that [J&J subsidiary] Ethicon has way more than the constitutionally required affiliation with Pennsylvania in relation to their transvaginal mesh,” Shanin Specter, a lead attorney for the plaintiffs, said Sept. 8.
A spokeswoman for Ethicon said she was pleased the court had asked the parties to brief the issue.
“Ethicon will vigorously defend itself in lawsuits concerning the use of our pelvic mesh products,” Kristen Wallace said in an emailed statement.
In its June ruling in Bristol-Myers, 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 one that promised to reshape the geography of mass tort litigation across the country.
The brief from the plaintiffs in the pelvic mesh mass tort said Ethicon worked extensively in Pennsylvania when designing, testing and manufacturing the pelvic mesh products implanted into the plaintiffs. The brief also specifically noted the company’s work with Secant Medical, a manufacturer located in Bucks County.
The brief cited testimony from Ethicon and Secant officers saying Ethicon provided Secant with specifications about the mesh and directed Secant’s production of the mesh, as well as tested the resulting samples. The brief also said Ethicon employees traveled to Pennsylvania to meet with Secant officials, and observe the manufacturing.
“Ethicon’s activities in Pennsylvania relating to Secant cannot be parsed out of the story for jurisdictional purposes,” Becker said in the brief. “Ethicon’s Pennsylvania activities lie at the heart of the litigation. Therefore, Ethicon is subject to Pennsylvania’s specific jurisdiction.”
Ethicon, however, has disputed its contacts with Pennsylvania, and has characterized its relationship with Secant as a limited contractual relationship.
Last month, Philadelphia Court of Common Pleas Judge Arnold New granted Ethicon’s motion that sought to revisit the state court’s jurisdiction in the mass tort. The court had initially ruled in 2015 the cases could be tried in Philadelphia, but New called for additional briefing on the issue following the Bristol-Myers decision.
New’s decision to reconsider jurisdiction 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.
Plaintiffs, however, have maintained that Ethicon, which is facing the lion’s share of the lawsuits in the mass tort, made significant contact with Pennsylvania in developing the mesh.
“If Ethicon’s contacts and affiliations with Pennsylvania as to its transvaginal mesh products are insufficient to satisfy even the bare minimum of due process, then no contacts would be sufficient except where the plaintiff is a resident of Pennsylvania,” Becker said in the memo.