The judge overseeing the pelvic mesh mass tort in Philadelphia has agreed to let the plaintiffs perform limited additional depositions related to a jurisdictional dispute that recently reignited in the wake of the U.S. Supreme Court’s ruling in Bristol-Myers Squibb v. Superior Court of California.
Philadelphia Court of Common Pleas Judge Arnold New on Oct. 13 granted defendant Ethicon’s motion for a protective order that sought to block the plaintiffs from taking additional depositions about the mesh-maker’s relationship with one of its materials suppliers. The ruling, however, also allowed the plaintiffs to depose both a corporate designee and the strategic sourcing manager for Ethicon, which is facing more than 100 pelvic mesh cases in Pennsylvania state court.
Shanin Specter of Kline & Specter, who is representing the plaintiffs, said in an emailed statement he was pleased with New’s ruling.
“We’re glad Judge New ordered the depositions to go forward,” Specter said. “To paraphrase Joe Louis, Johnson & Johnson ‘can run but they can’t hide.’”
The discovery dispute stems from arguments over how the decision in Bristol-Myers Squibb should affect the pelvic mesh mass tort program in Philadelphia. That Supreme Court ruling, which some have referred to as a “game-changing” decision for state court mass tort programs, 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, which would leave 30 cases pending in the state court program.
The plaintiffs, however, have pointed to the fact that biomaterials supplier Secant, which is located in Bucks County, manufactured the plastic mesh materials used in the mesh implants, and contend that this relationship is significant enough for Pennsylvania courts to have jurisdiction over the mass tort.
Earlier this month, Ethicon cried foul after the plaintiffs issued deposition notices aimed at gathering additional information about the relationship between Ethicon and Secant. The notices had been issued after New called for additional briefing to specifically address the extent to which Secant is the exclusive provider of Ethicon’s pelvic mesh devices, and, if Ethicon uses other mesh providers, whether it is possible to determine if a particular device contains materials provided by Secant.
Ethicon had argued that, along with being filed too late, the notices constituted unreasonable annoyance and harassment and imposed an undue burden for the company.
“They are completely unnecessary, too, because defendants, as well as Secant, have already provided thousands of pages of discovery on these topics,” Ethicon said in a brief filed Sept. 29 by Drinker Biddle & Reath attorney Melissa Merk.
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 that affidavits between Secant and Ethicon employees would provide more insight into the relationship between the two companies and the manufacturer of the mesh.
A spokeswoman for Ethicon, which is a J&J subsidiary, did not return a message for comment prior to the publication deadline.
Max Mitchell can be contacted at 215-557-2354 or email@example.com. Follow him on Twitter @MMitchellTLI.