The legal team representing the plaintiffs in a slew of pelvic mesh cases in Philadelphia has fired back in response to defendant Ethicon Pharmaceuticals’ argument that the plaintiffs’ deposition requests are too much too late.
Ethicon, which is facing over 100 lawsuits in the Philadelphia Court of Common Pleas Complex Litigation Center over its pelvic mesh products, asked Judge Arnold New 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, addressing the current dispute over venue. But the defendant has contended the depositions are overkill and that it already provided thousands of pages of documents on the subject already.
In a response to Ethicon’s motion to quash, Kline & Specter attorney Lee Balefsky wrote that there is, in fact, enough documentation to support the plaintiffs’ contention that Secant provided the materials to Ethicon—but their request for depositions is still appropriate.
“It was appropriate for plaintiffs to seek this discovery to clarify any ambiguity,” the response said. “Unfortunately, Ethicon now seeks to prevent these depositions from occurring. The court should allow the noticed depositions to proceed.
The response also claimed that affidavits between Secant and Ethicon employees would provide more insight into the relationship between the two companies and the manufacturer of the mesh.
“These affidavits explain that Ethicon supplied Secant with suture (in Pennsylvania) and then controlled every aspect of how Secant (in Pennsylvania) wove that suture into the mesh that Ethicon used in its products,” the response said. “Along with the discovery produced to date, these affidavits confirm that Secant has been the sole manufacturer of the mesh that has been used in the products at issue in the case pending before this court.”
The dispute over the correct home for the cases intensified after the U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California.
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.
“Johnson & Johnson is trying the old tactic of ducking responsibility by ducking a deposition,” Kline & Specter co-founder Shanin Specter said after Ethicon filed its motion to quash the deposition.
An Ethicon spokeswoman did not respond to a request for comment.