This is part two of a two part series concerning Ethicon’s concerted effort to judge shop and forum shop in the ETHICON PHYSIOMESH™ medical device lawsuits pending in Federal Court. This scorched earth legal strategy by Johnson and Johnson’s corporate subsidiary is disconcerting, to say the least. If you don’ believe this occurred, just read their memorandum they submitted to the Federal Court. This memo reads like a judge shopping and forum shopping manifesto and guide. At best this scorched earth is unseemly and disconcerting at worst it is borderline unethical. Ethicon’s mesh law firm should spend more resources offering a generous hernia mesh settlement 2018 to surgical mesh victims rather than litigating. See part 1 of 2 of this series here
Ethicon’s mesh attorneys try to steer clear of Judges in Florida!
In an unusual tactic, Ethicon challenged the capabilities and experience of an entire Federal District Court to handle the Physiomesh lawsuits! Normally, it is best practice for corporate counsel to show proper respect and deference to Federal Court judges. After all, these judges may hear sensitive and lucrative cases that such attorneys are involved with in the future.
Nonetheless, Ethicon’s hernia mesh lawyers, using unsavory and pathetic legal tactics, argued that the: “The Middle District of Florida is not an appropriate venue.” This is a slap in the face to the entire Middle District of Florida!
This type of command and control scorched earth litigation is not surprising, to say the least. Ethicon’s mesh defense attorneys even tried to censor our legal articles. Ethicon’s attempts at censorship are readily apparent if you view the cease and desist notice they sent to us.
If this isn’t forum and judge shopping then we don’t know what is!
The Middle District of Florida is comprised of the following divisions: Ft. Myers Division, Jacksonville Division, Ocala Division, Orlando Division and Tampa Division. This District has a proud tradition of judicial independence, judicial fairness and competency. Some of the greatest legal minds in the Federal Courts are in the Florida Federal Court Judiciary .
Nonetheless, Ethicon asserted that these Florida judges lacked the experience and capability of determining these surgical mesh causes of action. Perhaps, Ethicon’s lawyers should spend more time attempting to settle the Physiomesh claims rather then disparaging Florida Federal Court Judges. Ethicon’s corporate hernia mesh defense law firm does not seem interested in a Physiomesh settlement 2017. A global Physiomesh settlement 2018 also seems highly unlikely.
Hypocritically, Ethicon’s lawyers accuse the victims attorneys of judge shopping while in the midst of shopping for judges themselves!
Ethicon’s mesh attorneys, citing a very well respected manual, authored by David F. Herr, asserted that: “(“The Panel . . . will act to avert or deflect attempts by a party or parties to ‘game’ the system”); David F. Herr, Multidistrict Lit. Manual §§ 5:41, 7:7 (2016) (noting “the judiciary’s traditional opposition to tactics designed merely to permit forum-or judge shopping,” that “[t]he Panel does not give the parties an opportunity to judge-shop,” and that “[t]he Panel is quite ready to ignore the positions taken by the parties, especially when the odor of forum shopping is present”)” DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TRANSFER PURSUANT TO 28 U.S.C. § 1407 , In re: Ethicon Physiomesh Flexible Composite ) MDL No. 2782 Hernia Mesh Products Liability Litigation, William M. Gage MS Bar No. 8691 Butler Snow LLP 1020 Highland Colony Pkwy, Suite 1400 Ridgeland, MS 39157.
The audacity of Ethicon’s mesh lawyers
Ethicon’s hernia mesh attorneys have the audacity to rail against the “odor of forum shopping.” At the same time, Ethicon’s mesh lawyers are authoring what essentially constitutes a manifesto, attempting to forum shop and judge shop themselves. Id. Ethicon’ actions do not have just an odor of forum shopping, they stinks like a cesspool. Say it ain’t so! To add insult to injury, Ethicon has the chutzpah to suggest that any attempt to judge shop by the victim’s lawyers should be ignored. Ethicon has reached new heights in hypocrisy.
Judge shopping and forum shopping is wrong, no matter the rationale. Judge shopping is even unseemly when such judge shopping is reactive to what the other side is doing.
Ethicon appears to argue that The Middle District of Florida is inappropriate partly because the Plaintiff’s requested that District.
In the Memorandum to the Federal Court, Ethicon’s high powered hernia mesh defense attorneys quote Plaintiff’s hernia mesh lawyers who stated that the, “Middle District of Florida is uniquely situated as the appropriate forum to handle these cases because that Court has the most constituent cases filed, and one of the first-filed cases in the country.” (Doc. 1-1, p. 4).” Id.
Ethicon’s attorneys attempt to assail the victim’s attorneys request that the cases be determined in Florida by arguing in summary:
- The victims have filed more cases in Florida so that they can get all the claims resolved in Florida federal Courts.
- The Federal Court’s should not give any credence to where the hernia mesh victim’s filed their cases.
- The incidents in the case did not occur in Florida.
Here is an excerpt of Ethicon’s memorandum prepared by their Ethicon Physiomesh hernia mesh defense lawyers:
“While there are more cases pending in that district than other districts, that is because Plaintiffs’ counsel have chosen to file more of the earlier suits there, perhaps in order to influence the Panel’s choice of MDL venue. This is a matter virtually exclusively under the control of Plaintiffs’ counsel. There is no product-related reason to believe that there will be a disproportionate number of filings in the Middle District of Florida as opposed to any other district. Little deference should be accorded to the plaintiffs’ choice of forum when the events giving rise to their claims occurred outside the district and their primary goal in bringing suit in that district is to create a de facto MDL. See In re: Eastern Dist. Repetitive Stress Injury Litig., 850 F. Supp. 188, 194 (E.D.N.Y. 1994). The gravamen of Plaintiffs’ claims is that PHYSIOMESH was defectively designed and/or the warnings contained in the IFU were inadequate. None of the events connected with these claims took place in Florida.” Id.
“(See also In re: CVS Caremark Corp Wage & Hour Employment Prac. Litig., 684 F. Supp. 2d 1377, 1379 (J.P.M.L. 2010) (“[W]here a Section 1407 motion appears intended to further the interests of particular counsel more than those of the statute, we would certainly find less favor in it”); Hon. John G. Heyburn II, The Problem of Multidistrict Litigation: A view from the Panel: Part of the Solution, 82 Tul. L. Rev. 2225, 2241 (2008)” Id.
Ethicon’s corporate defense lawyers in summary argue:
- The victims argue that the first case filed was in Florida
- There are actually two cases in Georgia that were filed before the Florida case
- Nothing is going on in the case filed in Florida to help the inexperienced Florida judges learn how to handle the cases
Here is an excerpt of Ethicon hernia mesh defense attorneys memorandum:
“Plaintiffs suggest that the Middle District of Florida is the appropriate forum on the purported basis that “one of the first-filed cases in the country” [Quinn] is in that district. (Doc. Doc. 1-1, p. 5). Yet as explained above, two other cases have been pending longer, including the Lucas case, which has been pending in the Northern District of Georgia since December 2015— nearly a year longer than the Quinn case.” Id. DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TRANSFER PURSUANT TO 28 U.S.C. § 1407 , In re: Ethicon Physiomesh Flexible Composite ) MDL No. 2782 Hernia Mesh Products Liability Litigation, William M. Gage MS Bar No. 8691 Butler Snow LLP 1020 Highland Colony Pkwy, Suite 1400 Ridgeland, MS 39157.
“More important, the Quinn case is truly in its infancy. Not only was the complaint filed relatively recently—September 22, 2016—but the plaintiff in that case has not yet served written discovery requests, and no depositions have been scheduled or taken. The parties have not personally appeared before the assigned judge. Quite simply, nothing has transpired in that case that would afford that court greater knowledge about the issues in these cases than any other federal court in the country.” Id.
Ethicon’s lawyers believe the Honorable Judge Byron should not handle the Ethicon Psyiomesh cases and argue in summary:
- The victims want Judge Byron because he ““has already developed familiarity with the issues present.”
- Judge Byron is not familiar with the Psyiomesh case issues.
- In fact, the judges in Florida are just as unfamiliar with these issues as Judge Byron.
- There are not many Psyiomesh cases in Florida and these cases are stagnant without progess and as a result there is no good reason to litigate these cases in Florida.
Ethicon’s public airing of discontent with Judge Byron determining the cases is unseemly, disconcerting and unprofessional.
According to his biography, “Born in Queens, New York in 1959, between 1986 and 2014 Judge Byron served four years in the United States Army Judge Advocate General’s Corps, twelve years in the Department of Justice, two years at the International Criminal Tribunal for the Former Yugoslavia, and Judge Byron spent 10 years in private practice as a civil trial lawyer. On June 27, 2014, Judge Byron was sworn in as a United States District Judge for the Middle District of Florida. http://www.flmd.uscourts.gov/judicialinfo/Orlando/JgByron.htm
Here is an excerpt of Ethicon’s hernia mesh litigation positions from their actual memorandum submitted to the Federal Courts:
“Advocating for an assignment to Judge Byron, Plaintiffs quote from In re: American Inv. Life Ins. Co. Annuity Mktg. & Sales Prac. Litig., 398 F. Supp. 2d 1361, 1362 (J.P.M.L. 2005), which suggests that the Panel should assign an MDL to a judge who “has already developed familiarity with the issues present in this docket as a result of presiding over motion practice and other pretrial proceedings in the actions pending before her for the past year.” In stark contrast to the court in American Inv., Judge Byron has not had the opportunity to develop any familiarity with the issues. Nor have the judges for any of the other cases filed in the Middle District of Florida developed any familiarity with the issues. Indeed, even Plaintiffs acknowledge that “[n]one of the related actions are sufficiently advanced toward trial.” (Doc. 1, p. 2). Thus, the statistically insignificant number of cases that happen to be currently pending in Florida and the lack of significant progress in those cases does not support centralization in Florida. See In re: Darvocet, Darvon & Propoxyphene Prod. Liab. Litig., 780 F. Supp. 2d 1379, 1381-82 (J.P.M.L. 2011) (“[T]he location of the currently filed cases is not a particularly significant factor in our decision. . . . Since all the actions in this docket are at an early stage, transfer to another district should not be disruptive”).” DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TRANSFER PURSUANT TO 28 U.S.C. § 1407 , In re: Ethicon Physiomesh Flexible Composite ) MDL No. 2782 Hernia Mesh Products Liability Litigation, William M. Gage MS Bar No. 8691 Butler Snow LLP 1020 Highland Colony Pkwy, Suite 1400 Ridgeland, MS 39157.
Here is a summary of Ethicon’s arguments in their memorandum:
- The movers and shakers such as witnesses, physicians and experts involved in this litigation are not in Florida and are across the United States
- Steer clear of this corner of the United States because it is not accessible or convenient
- Get a federal judge who is experienced in this type of lawsuit unlike the Florida judges
“Consideration of the location of the parties, witnesses, and documents also does not support the Middle District of Florida as the appropriate transferee court. Plaintiffs (and their counsel), treating physicians, and expert witnesses will be spread across the country. Defendants are New Jersey corporations, and Defendants’ witnesses and documents are located primarily in New Jersey and other places (i.e., Europe), not including Florida. There is no reason to centralize these cases in the southeast corner of the United States. Even if the Southeast is truly the “center of gravity” of this litigation as claimed by Plaintiffs (Doc. 1-1, p. 7), Atlanta (or even Covington, Kentucky) would be more accessible and convenient than any cities in Florida. Finally, considering judicial efficiency, caseloads, existing MDL dockets, and experience of proposed transferee courts, other venues are much more suitable than the Middle District of Florida. Should the Panel centralize these cases, they should be transferred to an experienced federal judge whose docket is equipped to handle such a proceeding. See, e.g., In re: Google Inc. Cookie Placement Consumer Privacy Litig., 867 F. Supp. 2d 1356, 1357 (J.P.M.L. 2012) (assigning MDL to “a jurist experienced in complex multidistrict litigation”); In re: Blood Reagents Antitrust Litig., 652 F. Supp. 2d 1373, 1374 (J.P.M.L. 2009); In re: Vioxx Prods. Liab. Litig., 360 F. Supp. 2d 1352, 1354 (J.P.M.L. 2005) (“[W]e are assigning this litigation to a jurist To the extent that filings have been weighted toward the Southeast thus far, it is only because Plaintiffs’ counsel strategically chose to file these cases early in order to argue for the venue of their choice. This is, at most, a temporary situation, and there is no reason to believe that will continue. Indeed, after Plaintiffs filed their motion, PHYSIOMESH cases were filed in the Western District of New York, the Western District of Washington, the District of Minnesota, the Western District of Michigan, the Southern District of Ohio, the District of North Dakota, and other jurisdictions. experienced in complex multidistrict products liability litigation and sitting in a district with the capacity to handle this litigation”).
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Passive aggressively, Ethicon seeks to evade three Federal Judges
The old adage that if you cannot say something nice don’t say anything at all. Ethicon’s attorneys apparently do not live by that adage questioning Judge Byron’s experience and ability to handle the Psyiomesh hernia mesh cases. Ethicon’s hernia mesh attorneys questioned Judge Byon’s experience and indirectly his ability to handle the cases. Adding a passive aggressive flair, they questioned him “respectfully”. The word respectfully, does not make it any less of a slight.
If this isn’t judge shopping I don’t know what is judge shopping!
Ethicon’s mesh lawyers also questioned two other federal Judges ability to handle the Psyiomesh causes of action: Senior Judge Susan Bucklew and Judge James Whittemore. This type of advocacy at the expense of esteemed federal Court justice’s experience and ability is not likely to win any admirers among the fraternity that are federal judges.
To add insult to injury, the mesh defense lawyers cite the importance of an “experienced” and “capable” judge immediately after disparaging Judge Byron’s experience. Is this suggesting Judge Byron is not “capable” of handling the Psyiomesh claims? You be the judge. This also is no way to ingratiate yourself to Federal Court Justices.
The hernia mesh defense attorneys declared in there memorandum: “Respectfully, Plaintiffs’ first choice, Judge Byron, has no MDL experience and has been on the bench for fewer than three years. See In re: Ampicillin Antitrust Litig., 315 F. Supp. 317, 319 (J.P.M.L. 1970) (“[T]he availability of an experienced and capable judge familiar with the litigation is one of the more important factors in selecting a transferee forum”). As for Plaintiffs’ alternative suggestions, Senior Judge Susan Bucklew has never presided over an MDL, and Judge James Whittemore has not presided over a products liability MDL.” Id.
It is not just Florida judges, Ethicon’s lawyers throw the esteemed judges of the the Southern District of Illinois under the bus!
“The Southern District of Illinois is not an appropriate venue. Plaintiffs, like many other recent plaintiffs, alternatively request transfer to the Southern District of Illinois and an assignment to Judge David Herndon. Plaintiffs’ only explanation for suggesting Judge Herndon is that he “has substantial product liability MDL experience, and he has proven to be an innovative and well-qualified MDL judge.” (Doc. 1-1, pp. 7-8).” Id.
“Other than touting Judge Herndon’s experience, Plaintiffs do not explain how centralization in the Southern District of Illinois is consistent with the traditional criteria in selecting an MDL forum. The Southern District of Illinois is already over-burdened as the 12th busiest district court in the country by pending civil cases per judge. (Judicial Caseload Profile, supra). Further, 41.5% of that district’s civil docket has been pending more than three years,” Id.
“See, e.g., In re: Farxiga Prods. Liab. Litig., MDL 2776, Doc. 1 (J.P.M.L. Feb. 3, 2017); In re: Proton Pump Inhibitor Prods. Liab. Litig., MDL 2757, Doc. 46 (J.P.M.L. Nov. 7, 2016); In re: Invokana Prods. Liab. Litig., MDL 2750, Doc. 34 (J.P.M.L. Oct. 12, 2016); In re: Taxotere Mktg., Sales Practices & Prods. Liab. Litig., MDL 2740, Doc. 20 (J.P.M.L. Aug. 3, 2016); In re: RoundUp Prods. Liab. Litig., MDL 2741, Doc. 1 (J.P.M.L. July 27, 2016); In re: Fluorquinolane Prods. Liab. Litig., MDL 2642, Doc. 1 (J.P.M.L. May 19, 2016); In re: Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices & Prods. Liab. Litig., MDL 2738, Doc. 1 (J.P.M.L. July 15, 2016); In re: Xarelto Prods. Liab. Litig., MDL 2592, Doc. 1 (J.P.M.L. Oct. 9, 2014); In re: Pradaxa Prods. Liab. Litig., MDL 2385, No. 1 (J.P.M.L. May 30, 2012); In re: Actos Prod. Liab. Litig., MDL 2299, Doc. 1 (J.P.M.L. Aug. 31, 2011). ranking it 93rd out of 94 districts (second to last), and this district is ranked 92nd of 94 (third to last) in terms of the time from filing to resolution of civil cases. Id. Moreover, another judge in the Southern District of Illinois—Judge Nancy Rosenstengel—has entered an order in the In re: Depakote consolidated proceeding stating that she intends to “ensure that the majority, if not all, of the cases pending in this district are tried by the end of 2017.” See In re: Depakote, No. 3:12-cv-00052, Order at 1-2 (S.D. Ill. July 6, 2016) (Ex. 2). That docket includes approximately 129 cases involving approximately 691 plaintiffs. Id. at 1. Judge Rosenstengel stated that she anticipated that her trial plan will be “a massive undertaking involving all of this district’s resources.” Id. (emphasis added). There is no reason to assign an MDL to an already overtaxed district court when many other more suitable district courts have the capacity to handle a new assignment.” Id
In Ethicon’s memorandum, they throw caution to the wind and start naming judges they want
“For the foregoing reasons, Defendants respectfully request that the Panel deny Plaintiffs’ request to centralize these cases. Alternatively, Defendants request that the actions be transferred to the District of New Jersey (Judges Kugler, Simandle, or Arleo), or in the alternative, the Eastern District of Kentucky (Judge Reeves) or the Northern District of Georgia (Judge Batten).” Id.