Johnson & Johnson subsidiary Ethicon has balked at deposition requests aimed at gathering information central to a recently reignited venue dispute in the pelvic mesh mass tort in Philadelphia.
Ethicon, which is facing more than 100 lawsuits in the Philadelphia Court of Common Pleas over its pelvic mesh products, filed a motion asking the Philadelphia Court of Common Pleas to quash deposition notices the plaintiffs sent to company officials, including Ethicon’s strategic sourcing manager. The depositions are aimed at gathering information about the extent to which a Pennsylvania-based company, Secant, supplied biomaterials to Ethicon for use in its mesh products, but the defendant has contended the depositions are overkill and would create an unfair burden.
“Plaintiffs’ deposition notices are too late, constitute unreasonable annoyance and harassment, and they impose an undue burden,” Ethicon said in the brief filed Sept. 29 by Drinker Biddle & Reath attorney Melissa Merk. ”They are completely unnecessary, too, because defendants, as well as Secant, have already provided thousands of pages of discovery on these topics.”
Kline & Specter attorney Shanin Specter, who is representing the plaintiffs, said in an emailed statement that he plans to file a response soon.
“Johnson & Johnson is trying the old tactic of ducking responsibility by ducking a deposition,” Specter said.
The plaintiffs’ deposition notices were issued after Philadelphia Court of Common Pleas Judge Arnold New held a hearing last month focusing on what effect the U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California may have on the pelvic mesh mass tort program.
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.
Ethicon, which is based in New Jersey, has argued that Bristol-Myers Squibb means 90 cases that were filed in Philadelphia court by out-of-state plaintiffs should be tossed, leaving just 30 cases pending in the state court. That ruling hinged on the relationship between Bristol-Myers Squibb and a California-based pharmaceutical distributor, with the court finding their relationship was not significant enough for non-California residents to sue Bristol-Myers Squibb in the Golden State.
In the pelvic mesh program, plaintiffs have pointed to the fact that Secant, which is located in Bucks County, manufactured the plastic mesh materials used in the mesh implants as the basis for their argument that jurisdiction is proper in Pennsylvania even though Ethicon is based in New Jersey.
Ethicon’s recent motion seeking to quash the depositions and to have a protective order imposed contended that the depositions requests far exceeded the scope of New’s Sept. 15 order calling for post-argument briefing on the extent to which Ethicon uses Secant’s materials.
“Secant’s role in this litigation has long been understood, and this court long ago dismissed all claims against Secant,” Ethicon said in the brief. “This court’s request for supplemental briefing did not entitle plaintiffs to additional discovery, and the additional discovery they seek has no bearing on the personal jurisdiction arguments at issue.”
The plaintiffs have contended 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.
In prior briefing to the court, the plaintiffs have cited testimony from Ethicon and Secant officers saying Ethicon provided Secant with specifications about the mesh, directed Secant’s production of the mesh, and tested the resulting samples. Ethicon, the plaintiffs have further noted, traveled to Pennsylvania to meet with Secant officials, and observe the manufacturing process.
A spokeswoman for Ethicon declined to comment beyond the filing.
Max Mitchell can be contacted at 215-557-2354 or email@example.com. Follow him on Twitter @MMitchellTLI.