(This is part 1 of a two part series concerning Ethicon’s concerted effort to judge shop and forum shop in the ETHICON PHYSIOMESH™ Federal Court litigation. Read part 2 )
Ethicon is a division of Johnson and Johnson. In May of 2016, Ethicon withdrew its ETHICON PHYSIOMESH™ hernia mesh medical devices from the marketplace. “Two unpublished studies, one in the Danish Medical Registry and the other in the German Medical Registry, suggested its failure rate for laparoscopic ventral hernia surgeries were higher than the other meshes used on patients in these registries.” Mesh News Desk
There have been many lawsuits filed against Ethicon alleging that ETHICON PHYSIOMESH™ is defective, unreasonably dangerous and proper warnings were not provided to victims.
The Panel on Multi District Litigation transferred all of the ETHICON PHYSIOMESH™ cases to the Northern District of Georgia. The panel ordered that “IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the Northern District of Georgia are transferred to the Northern District of Georgia and, with the consent of that court, assigned to the Honorable Richard W. Story for coordinated or consolidated pretrial proceedings. See the transfer order here: Transfer order
This is part one of a two part expose on Ethicon’s organized attempt, acting by and through their hernia mesh lawyers, to engage in what appears to be judge shopping and forum shopping. It appears that they are trying to find judges who may be favorable to their legal positions. Ethicon’s hernia mesh defense attorneys utilized many pretexts and rationalization to assert that their rationale for judge shopping is for other reasons not including judge shopping.
Ethicon attempts to avoid paying victims
Johnson and Johnson and their corporate subsidiary, Ethicon, are doing everything to avoid paying hernia mesh victims. They do not want to pay innocent victims compensation for their pain and suffering, medical bills and revision surgeries. They retained high powered hernia mesh attorneys to attempt to move the PHYSIOMESH lawsuits to judges who may be more favorable to their legal positions. These hernia mesh lawyers engaged in blatant “forum shopping” and “judge shopping” to evade paying victims fair and just compensation for their hernia mesh complications and injuries.
Johnson and Johnson and Ethicon’s judge shopping trip
It appears they engaged in judge shopping. In my opinion, Ethicon engaged in forum shopping. Do not take our word for it! Just read the excerpts of the motions and paperwork, set forth below, submitted by Ethicon’s corporate defense mesh lawyers to the Federal Court!
Laughably, Ethicon’s attorneys accuse Plaintiffs of Judge shopping and state that it is deleterious in the midst of a judge shopping expedition
Hypocritically, Ethicon’s lawyers accuse Plaintiff’s attorneys of judge shopping while stating “(“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
The Mesh companies requested that the PHYSIOMESH cases should be decided in New Jersey
Johnson and Johnson and Ethicon fought strenuously to get the PHYSIOMESH cases into New Jersey Federal Courts. Sadly, as far as New Jersey hernia mesh lawyers are concerned, the case were not transferred to New Jersey. These hernia mesh attorneys sought to relocate the defective product causes of action to New Jersey Federal Courts. If Ethicon acting through their mesh lawyers could not get the judges they sought in New Jersey they argued, “Alternatively, these cases should be centralized in the Eastern District of Kentucky or the Northern District of Georgia.” DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TRANSFER PURSUANT TO 28 U.S.C. § 1407 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION In re: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation MDL No. 2782 Oral Argument Requested- Author: William M. Gage MS Bar No. 8691 Butler Snow LLP 1020 Highland Colony Pkwy, Suite 1400 Ridgeland, MS 39157 Counsel for Defendants Johnson & Johnson and Ethicon, Inc.
Pretextual reasons for moving the hernia mesh cases cited by Ethicon to the Federal Court
In their argument’s to the Federal Court, Ethicon’s hernia mesh attorney in our opinion relied on numerous pretexts to disguise the real reason Ethicon was shopping for judges. Here is a summary of the hernia mesh defense lawyer’s arguments of why Ethicon demanded that the PHYSIOMESH cases be resolved in New Jersey:
- “New Jersey has the closest connection to the facts” Id.
- “at least one of the cases filed so far is pending in New Jersey” Id.
- “this district is the most convenient.”Id.
- “District of New Jersey is equipped to handle a products liability MDL. This district has extensive experience in pharmaceutical and medical device litigation” Id.
- “Fifth, the Camden and Newark divisions are very accessible to the parties, witnesses, and counsel.” Id.
These lawyers need to “man up” and just admit that the reasons they sought New Jersey jurisdiction is because they believe they have a better chance to win with a particular judge in New Jersey. It appears that any other reasons given are pure pretexts and rationalizations.
Winning for Johnson and Johnson means depriving seriously and severely injured victims from justice and compensation. Do we really believe Ethicon’s primary motivation to relocate the cases to a different forum was convenience or accessibility?
A nice story! Ethicon PHYSIOMESH cases in the capable hands of the Honorable Richard W. Story
At the end of the day, the federal Court decided to hear the cases in the Northern District of Georgia. The Panel on Multi District Litigation ordered that “IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the Northern District of Georgia are transferred to the Northern District of Georgia and, with the consent of that court, assigned to the Honorable Richard W. Story for coordinated or consolidated pretrial proceedings. Transfer order Georgia hernia mesh lawyers and Atlanta Georgia hernia mesh attorneys must be rejoicing about the PHYSIOMESH lawsuits being transferred to their home field.
Ethicon’s lawyers seek to steer clear of Florida Federal Judges
The hernia mesh defense lawyers retained by Ethicon did not only “judge shop” and “forum shop.” They actively tried to prevent Florida Federal court Judges from handling the cases. They argued that, “The Middle District of Florida is not an appropriate venue.” Id. Perhaps, Johnson and Johnson should have been spending their time and resources settling the PHYSIOMESH hernia mesh claims rather than trying to block esteemed Federal Court judges in Florida from deciding the claims. A 2017 settlement of these mesh product liability claims seems unlikely.
Below you will find Ethicon’s corporate defense lawyer’s arguments for a New jersey Forum:
“The District of New Jersey would be the best venue for any MDL. Should the Panel decide to centralize these cases, the District of New Jersey would be the most appropriate forum when considering the Panel’s traditional selection criteria. First, the District of New Jersey has the closest connection to the facts giving rise to these claims. To this end Ethicon’s decisions concerning the design, development, labeling, regulatory submission and clearance, and launching of PHYSIOMESH primarily took place in New Jersey and Europe. See, e.g., In re: Nutramax Cosamin Mktg. & Sales Prac. Litig., 988 F. Supp. 2d 1371, 1371-72 & n.2 (J.P.M.L. 2013); In re: Darvocet, 780 F. Supp. 2d at 1382.” Id.
Ethicon argues that New Jersey is most convenient forum
“Second, at least one of the cases filed so far is pending in New Jersey (Ramey), which is assigned to Judge Freda L. Wolfson. Third, this district is the most convenient. Section 1407(a) specifically identifies the “convenience of parties and witnesses” as a relevant consideration in the centralization decision. Defendants are headquartered in New Jersey, and many of the relevant documents and witnesses are located there. As such, coordinating the actions in the District of New Jersey will facilitate swift and convenient discovery and allow Plaintiffs access to the court and Ethicon’s pertinent corporate witnesses in one trip. See In re: Johnson & Johnson Talcum Powder Prod. Mktg., Sales Practices & Prod. Liab. Litig., MDL No. 2738, 2016 WL 5845997, at *2 (J.P.M.L. Oct. 4, 2016) (transferring to this district and noting that “[a]s Johnson & Johnson is headquartered in New Jersey, relevant evidence and witnesses likely are located in the District of New Jersey).” Id.
Ethicon cites New Jerseys: “extensive experience in pharmaceutical and medical device litigation.”
“Fourth, the District of New Jersey is equipped to handle a products liability MDL. This district has extensive experience in pharmaceutical and medical device litigation. Moreover, it has one of the fastest median times among all district courts from filing to disposition in civil cases—8 months—and only 6% of the civil cases currently pending in the district are more than three years old.(See http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile1231.2016.pdf (hereinafter “Judicial Caseload Profile). The Panel has recognized that the District of New Jersey “has the resources and capacity to efficiently handle” an MDL. In re: Nickelodeon Consumer Privacy Litig., 949 F. Supp. 2d 1377, 1377-78 (J.P.M.L. 2013). Judges Robert B. Kugler, Jerome B. Simandle, and Madeline Cox Arleo are particularly well-suited to preside over a products liability MDL given their experience with such litigation. Id.
See, e.g., In re: Blood Reagents Antitrust Litig., 652 F. Supp. 2d 1373, 1374 (J.P.M.L. 2009) (“Centralization in this district permits the Panel to effect the Section 1407 assignment to a judge with experience presiding over multidistrict litigation . . . .”); In re: Bank of Am. Home Affordable Modif. Program (HAMP) Contract Litig., 746 F. Supp. 2d 1359, 1361 (J.P.M.L. 2010) (assigning coordinated proceedings to judge who had “a wealth of prior MDL experience”); In re: Oil Spill by the Oil Rig “DeepWater Horizon” in the Gulf of Mexico, on April 20, 2010, 731 F. Supp. 2d 1352, 1355 (J.P.M.L. 2010). Judge Kugler in the Camden Division presides over In re: Benicar (Olmesartan) Products Liab. Litig. (MDL No. 2606). Not currently assigned an MDL, Judge Simandle in the Camden Division has extensive MDL experience, including In re: Ford Motor Co. Ignition Switch Prods. Liab. Litig. (MDL No. 1112), and In re: Caterpillar, Inc., C13 & C15 Engine Prods. Liab. Litig. (MDL No. 2540). One of the state’s most distinguished jurists—having served on the federal judiciary since 1992 Judge Simandle would also be a logical choice. Judge Arleo in the Newark Division presides over AZEK Building Prods., Inc. Mktg. & Sales Prac. (MDL No. 2506), which only has three cases. Before she became a district judge in 2014, Judge Arleo served as a magistrate judge for nearly 15 years and gained extensive MDL experience, including with the In re: Zimmer Durom Hip Cup Prods. Liab. Litig. (MDL No. 2158) proceedings.” Id.
“Fifth, the Camden and Newark divisions are very accessible to the parties, witnesses, and counsel. Most of Ethicon’s anticipated witnesses and documents are located in Somerville, New Jersey, while some witnesses may be located in Europe. The Camden federal courthouse is just 14 miles from Philadelphia International Airport, an American Airlines hub which serves approximately 1000 flights per day, including direct flights to 88 domestic locations and 18 international destinations. (Ex. 1, airport data). The Newark federal courthouse is less than five miles from Newark Liberty International Airport. A United Airlines hub, that airport has over 1200 flights per day, including direct flights to 82 domestic locations and 77 international destinations.”
“The courthouses in Camden and Newark, therefore, are much more “convenient and accessible” to most of the parties, witnesses, and counsel than the venues suggested by Plaintiffs, and the Panel has noted the accessibility of this district on several occasions. See, e.g., In re: Nickelodeon, 949 F. Supp. 2d at 1377-78; In re: Insurance Brokerage Antitrust Litig., 360 F. Supp. 2d 1371, 1373 (J.P.M.L. 2005); In re: Comp. of Managerial, Prof’l & Tech. Employees Antitrust Litig., 206 F. Supp. 2d 1374, 1375-76 (J.P.M.L. 2002) (“[T]he District of New Jersey [is an] accessible, urban district equipped with the resources that this complex docket is likely to require”).” Id.
“(See also In re: Propecia (Finasteride) Prods. Liab. Litig., 856 F. Supp. 2d 1334, 1335 (J.P.M.L. 2012) (transferring to a district near pharmaceutical manufacturer defendant’s headquarters and “close to where relevant evidence and witnesses are likely located”); In re: KDur Antitrust Litig., 176 F. Supp. 2d 1377, 1378 (J.P.M.L. 2001) (“[T]he District of New Jersey stands out as the most appropriate transferee district for this docket” because, among other reasons, defendants’ principal place[s] of business [is] located in New Jersey, [and] relevant documents and witnesses will likely be found there”)” Id.
Ethicon’s mesh attorneys argue that the PHYSIOMESH cases should be decided in Kentucky or Georgia
Kentucky hernia mesh lawyers would have rejoiced if the Ethicon cases had been transferred to the Eastern District of Kentucky. The Federal Court rejected the mesh defense lawyers request to have the Ethicon cases heard in Kentucky.
“Alternatively, these cases should be centralized in the Eastern District of Kentucky or the Northern District of Georgia. Defendants alternatively suggest that any MDL be assigned to Judge Danny C. Reeves in the Eastern District of Kentucky or Judge Timothy C. Batten in the Northern District of Georgia. These experienced MDL judges sit in geographically-accessible districts where at least one constituent action is pending, and the most recent government statistics indicate that neither of these judges presides over any civil cases pending more than three years or any motions pending more than six months. (See Civil Justice Reform Act of 1990 Report, pp. 32, 64 (Mar. 31, 2016), http://www.uscourts.gov/sites/default/files/data_tables/cjra.na.0331.2016.pdf). Id.
“One constituent case is currently pending in the Eastern District of Kentucky and assigned to Judge Amul R. Thapar, who was recently nominated to the United States Court of Appeals for the Sixth Circuit. This district is only the 69th busiest district in the country by pending civil cases per judge—thus it has far more capacity to accommodate a new MDL than the venues suggested by Plaintiffs. (Judicial Caseload Profile, supra). See also In re Tyco Int’l, Case MDL No. 2782 Document 30 Filed 04/13/17 PLtd. Sec. Litig., MDL No. 1335, 2000 U.S. Dist. LEXIS 5551, at *3 (J.P.M.L. Apr. 26, 2000) (coordinating proceedings in district where “the docket [was] significantly less congested than that of the other preferably suggested transferee district”).The Eastern District of Kentucky has recent experience handling medical products liability MDLs, as Judge Danny Reeves presided over In re: Darvocet, supra (MDL No. 2226). During those proceedings, which have now concluded, Judge Reeves agreed to sit in the Covington, Kentucky courthouse, which is only minutes away by car from the Cincinnati/Northern Kentucky International Airport. A Delta Airlines hub, that airport is situated in a central location, and it has direct flights to 48 domestic destinations and seven international destinations. (Ex. 1, airport data). See also In re: Inter-op Hip Prosthesis Prods. Liab. Litig., 149 F. Supp. 2d 931, 933 (J.P.M.L. 2001) (assigning MDL to “an accessible, geographically central metropolitan district”); In re: Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 398 F. Supp. 2d 1371, 1372 (J.P.M.L. 2005) (same).
Ethicon lawyers pimp Atlanta as a good forum for the hernia mesh claims
The Atlanta division of the Northern District of Georgia is one of the most accessible venues in the country and is especially convenient to many of the current parties’ counsel. Hartsfield-Jackson International Airport is the world’s busiest airport, accommodating 2500 flights per day and direct flights to approximately 150 domestic destinations and 70 international destinations—many more than the airports serving Plaintiffs’ suggested venues. (Ex. 1, airport data). Eighty percent of the U.S. population is within a two-hour flight from the Atlanta airport, which is the primary hub of Delta Airlines. This airport is also uniquely capable of accommodating overseas witnesses.” Id.
“Three constituent cases are currently pending in the Northern District of Georgia, including the Lucas case, which is the longest pending case in the country. See In re: Quaker Oats Maple & Brown Sugar Instant Oatmeal Mktg. & Sales Prac. Litig., 190 F. Supp. 3d 1349, 1351 n.4 (J.P.M.L. 2016) (“The ‘first-to-file rule’ is a doctrine of federal comity, pursuant to which, when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the issues raised by the cases substantially overlap”) (citations and internal quotation marks omitted); In re: Uber Techs., Inc., Tel. Consumer Prot. Act Litig., No. MDL 2733, 2016 WL 5846034, at *2 n.5 (J.P.M.L. Oct. 3, 2016) (quoting same); In re: Genetech Herceptin (trastuzumab) Mktg. & Sales Prac. Litig., 178 F. Supp. 3d 1374, 1376 (J.P.M.L. 2016) (assigning MDL to district on the basis that the “first-filed and most procedurally advanced action is pending in that district” ); In re: Prudential Ins. Co. of Am. SGLI/VGLI Contract Litig., 763 F. Supp. 2d 1374, 1375 (J.P.M.L. 2011) (“As we have previously held, it is appropriate to give the first-filed criterion some weight in selecting a transferee district”); In re: Refined Petrol Prods. Antitrust Litg., 528 F. Supp. 2d 1365, 1367 (J.P.M.L. 2007) (transferring to the district where the pending action was the “most advanced”). Judge Timothy Batten (appointed in 2006) is currently presiding over the In re: Delta/AirTran Baggage Fee Antitrust MDL (MDL No. 2089). That MDL appears to be concluding.” Id.
“Further, this district has significant experience handling MDLs and appears to have more capacity to accommodate a new MDL than Plaintiffs’ suggested venues.The plaintiffs in that case did not join in the motion for transfer, and that case was omitted from Plaintiffs’ filings. Lucas and two other PHYSIOMESH cases are assigned to Senior Judge Harold L. Murphy, who sits in the Rome division. Rome, Georgia, is in a relatively remote location in the northwest corner of the state and is not nearly as accessible as Atlanta. Judge Richard W. Story in the Atlanta division of that district (appointed in 1998) is also a very experienced jurist. Caseload Profile, supra). In fact, the six-month average time between filing and disposition of civil cases in that district is the sixth quickest in the entire country. (Id.).” Id.