The judge overseeing pelvic mesh mass tort litigation said the New Jersey-based defendant may have had a “strong” relationship with a Pennsylvania mesh-manufacturer, but he questioned whether that relationship would be enough to allow the Keystone State to retain jurisdiction over 90 pelvic mesh cases involving out-of-state plaintiffs.
Philadelphia Court of Common Pleas Judge Arnold New heard arguments Wednesday over whether the U.S. Supreme Court decision in Bristol-Myers Squibb v. Superior Court of California meant 90 out-of-state plaintiffs suing New Jersey-based medical device company Ethicon will have their cases tossed from the mass tort program, leaving just 30 pelvic mesh cases pending in Philadelphia.
The Bristol-Myers Squibb decision, which has been characterized as a game-changing decision by some, 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.
That ruling hinged on the relationship between drugmaker Bristol-Myers Squibb and McKesson Corp., a California drug distributor. The plaintiffs had argued that, because McKesson distributed Plavix, the drug at issue in the case, California had jurisdiction over hundreds of Plavix-related claims. However, the justices determined the relationship between McKesson and Bristol-Myers Squibb was not adequate to establish jurisdiction in the Golden State.
In the pelvic mesh program, plaintiffs have pointed to the fact that Secant, a Pennsylvania-based company, manufactured the plastic mesh materials used in the mesh implants as the basis for their argument that jurisdiction is proper in Pennsylvania even though the main defendant, Johnson & Johnson subsidiary Ethicon, is based in New Jersey.
Early in the nearly 90-minute hearing Wednesday, New asked Drinker Biddle & Reath attorney Alicia Hickok to discuss Ethicon’s relationship with Secant in comparison to Bristol-Myers Squibb’s relationship with McKesson.
“Your honor, it’s a different relationship,” Hickok said.
“I agree,” New cut in. “It’s a stronger relationship.”
However, Hickok said the relationship needs to go directly to the causes of action each plaintiff has alleged in their lawsuit.
In the case of the pelvic mesh plaintiffs, those causes of action are defective design and failure to warn, but Hickok noted that those decisions and related regulatory submissions were all conducted by Ethicon executives in New Jersey.
“These were not responsibilities as to people who were in Pennsylvania,” Hickok said. Using a roll of mesh manufactured in Pennsylvania “is not enough to say the cause of action arises out of it.”
Hickok also noted that Secant was previously dismissed as a defendant in the pelvic mesh litigation, but New seemed dismissive of that argument, noting the prior ruling regarding Secant hinged on issues arising out of the Biomaterials Access Assurance Act.
“That’s an entirely different definition than would be applicable to what’s before us today, which is jurisdiction,” New said.
New initially ruled in 2015 that Philadelphia should have jurisdiction over the pelvic mesh mass tort, but agreed to reconsider the issue in the wake of Bristol-Myers.
Kline & Specter attorney Charles “Chip” Becker, arguing for the plaintiffs, contended the ruling did not change the plaintiffs’ argument on jurisdiction, and should not change the reasoning behind New’s 2015 decision.
“They placed themselves in the jurisdiction of Pennsylvania courts,” Becker said.