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Mesh Makers Want Non-Residents Ousted from Philadelphia Court

SCOTUS, Wikipedia

Mesh Medical Device News Desk, July 11, 2017 ~ * This story is just updated** Mesh makers, Johnson & Johnson and Boston Scientific want 97 transvaginal mesh plaintiffs ousted from Philadelphia Court of Common Pleas following a U.S. Supreme Court decision on personal jurisdiction. 

**NEW* As of Monday, July 10, the judge in the District Court for the Eastern District of Missouri removed 20 talcum powder cases, citing a recent controversial U.S. Supreme Court decision on jurisdiction.  **this story is in production*

Harris Martin Publishing is reporting the latest here.

Here is the background.

On June 19, a Missouri judge declared a mistrial in a lawsuit filed by the estates of three women who died, allegedly after long-term use of Johnson & Johnson’s talcum powder.

Nothing happened in the courtroom to cause the mistrial.

Instead, earlier the same day, the U.S. Supreme Court (SCOTUS) issued a decision that dealt a blow to injured consumers and their ability to seek redress in the court of their choosing.

In an 8-1 vote, the Supreme Court decided that allowing plaintiffs to take their grievances to a favorable court when they don’t live in that state, was venue shopping.

See SCOTUS on Bristol Myers Squibb and BSNF Railway on personal jurisdiction.

The one dissenting vote, Justice Sonia Sotomayor, saw nothing wrong with it, noting that nothing is unfair about taking a massive corporation to court when the plaintiffs are made up of both resident and non-resident plaintiffs. After all, the product is sold nationwide.

Cheryl Ladd for J&J 1982

The reason the St. Louis judge declared the mistrial was that two of the three talcum powder plaintiffs were from another state.  The trial was just beginning so the judge decided a mistrial would be easier than trying the case twice.

The St. Louis court has been a particularly favorable venue for these talcum powder-ovarian cancer cases, awarding millions and huge punitive damages to the injured women.  Another 1,700 women are in line to have their cases heard there.

Now transvaginal mesh cases  are facing the same test in another court.

The legal departments of mesh makers, Boston Scientific (BSC) and Johnson & Johnson (J&J), have asked the Philadelphia Court of Common Pleas to throw out nearly 100 cases filed by plaintiffs who do not reside in Pennsylvania.

With that, potentially $46 million in recent transvaginal mesh injury awards would be challenged.

J&J, from Huffington Post

On June 30, 2017, J&J motioned the court with the misspelled title of, ”Preliminary Ojbections for lack of personal jurisdiction”

Read it  here.

J&J’s attorneys say the plaintiffs lacked personal jurisdiction.

To make its point, Ethicon attached the appeals of Ms. Hammonds and Carlino, both out-of-state plaintiffs who were awarded $12.5 and $13.7 in separate trials by the Philadelphia court.

Another plaintiff, Ms. Engleman, was awarded $20 million by the Philadelphia jury.  She resides in New Jersey, but had surgery in Philadelphia, which could satisfy the personal jurisdiction criteria.

Philadelphia Court of Common Pleas

If the mesh makers get their way, $46 million in recent jury awards would be voided.

Another recent jury award ($2.16 million) in the Philadelphia court went to Sharon Beltz who resides in Pennsylvania.

Boston Scientific’s lawyers also filed a motion arguing that at least six plaintiffs who do not live, work or were injured in Pennsylvania should also have their cases dismissed.

BSC wants the court to reconsider its objection to personal jurisdiction that it filed with the court two years ago.

While defendant corporations call out nonresident plaintiffs, it should not go unmentioned that Boston Scientific is incorporated in Delaware.

BSC takes advantage of the business-friendly tax advantages of that state, but BSC has no principal place of business in Delaware. Its headquarters are in Massachusetts.

If the court agrees, there would be a review of 1,700 talcum powder lawsuits pending in Missouri and 180 transvaginal mesh cases pending in Philadelphia.

Ironically, J&J won its first pelvic mesh case recently.

However, Kimberly L. Adkins is from Ohio, so theoretically, it too would be dismissed from this jurisdiction.   ###

 

24 Comments

  1. Monica says:

    What? This is confusing. Although my case is not in Philadelphia, it is in West Virginia and I’m not in West Virginia, does this mean eventually the cases in West Virginia are going to be dismissed?

  2. Kitty says:

    Wow. Bad news for these ladies that are not from PA..probably they want the millions to stay in the state.

  3. SRA says:

    I am confused as well. What is the difference with MDL?

    • Jane Akre says:

      Multidistsrict litigation is federal court where actions are consolidated. Versus state court in philadelphia, where they are litigated one by one. Put mdl in the search bar if you want to know more.

  4. Dy says:

    Wow,I imagine that the state mdl is better,because they are looked at one by one. I also was in West Virginia and not a good out come for me. Dy

  5. Dy says:

    Looks also like the MLD federal courts where actions are consolidated are getting settlements less than one million verses state courts in Philadelphia.

    • Jane Akre says:

      The women in Philadelphia are going to trial. And you are right, they are getting more than the cases tried in the MDL in Charleston, WV. I wonder if the relative value of a case varies depending on the region of the country. One million dollars in Charleston, WV is not the same as one million dollars in Philadelphia n the eyes of the beholder.

      • Bejah Blue says:

        Interesting…If I were looking at residential property in both areas the homes in one area would tend to be much more expensive than in the other AND the demographics would probably illustrate that one population was considerably more well educated with a higher standard of living and the capacity to protect their assets and demand fair treatment. I am concerned about what this suggests about the way different populations are regarded under the law. Am I delusional or do I smell a rat or a bunch of fat cats or both.

  6. Shirley says:

    Jane does this mean it is already granted? You mean to tell me because of Missouri Court ruling that all courts except NJ where there is a consolidation can dismiss our cases based on jurisdiction? This is not justice because everyone knows seeking representation in our own states that law makers and judges usual reside to the business more so than the injured. These actions are so out of context sounds to me like they are just seeking an easy way out. It doesnt matter our injuries and what it has done to our livelihood. Do we have the right then to seek representation in our own state because of a dismisal? We need answers because its been 5 years and still waiting for a trial and yet now new laws become effective changing all of what we have been waiting for of our chance for a fair trial to seek justice to those whom have harmed us. Feeling pretty upset by this because of all the new laws protecting the manufacturers who have done nothing but making a profit implanting women with toxic materials knowing evidence was destroyed and yet cannot fix what has been done too us. Doesn`t surprise me that`s for sure. The turn of the century is a mass of destruction against women.

    • Jane Akre says:

      Shirley- my understanding is the MDL’s are currently immune from this sort of venue challenge…. i”m not a lawyer as you know and your lawyer can tell you more. the MDL system is supposed to unburden local courts by making rulings consistent, therefore coming to a conclusion sooner. Imagine, if 5 different courts had five different rulings on whether mention of the FDA should be allowed in a mesh case! There would be challenges all over the place and nothing would get done. So having one judge oversee rulings makes them consistent, which even critics of the MDl system have to admit is a benefit. Stay tuned…..It really doesn’t make sense, is my opinion. If you can use a drug or device or product in that state, does it matter if the plaintiff or defendant doesn’t live there? I agree with Sonya Sotomayor, the one dissenting vote on the Supremes.

    • Still Standing says:

      Shirley. This was not a Missouri ruling . The US Supreme Court ruled on a case in California against Bristol Meyer Squibb. They had challenged a California case where non-residents had been joined up a few California residents alleging damages. Bristol Meyer Squibb argued that non residents were not under the jurisdiction of California state courts. The Supreme Court ruled in favor ofBristol Meyers. When this decisionn came down, the Missouri judge declared a mistrial because he knew the new ruling changed everything about state jurisdictions. This was not a ruling just about mesh cases. It was to clarify some other ruling they had decided regarding where litigants could file a lawsuit. They are trying to get rid of what is termed “judicial hell holes” where mass torts are filed because of plaintiff leaning courts such as St. Louis, California, Philadelphia, and Illinois even though the plaintiff doesn’t live there or the business isn’t headquartered there. This is the 3rd ruling on jurisdiction they have made this year. Some attorneys don’t believe this will impact MDLs in federal court, others do believe it will. My thought is that the mesh manufacturers will seek to challenge all of their state and federal court lawsuits in an effort to clarify the ruling. It could result in more delays as they try to sort this out. Whatever happens, I think this leaves the door open for legal challenges for non residents and it could be a card the defendants use at the settlement table.

      • Jane Akre says:

        Thank you for this interpretation. You know big businesses that harm will try to use this to their full advantage.

      • Shirley says:

        Also in their argument to the Philadelphia courts is the Missouri Courts of where 10 plantiffs were exculed from Talc Powder law suit on June 30th of where Plaintiffs were not from the same state of which they reside and/or where they were implanted. Ethicon/JJ attorneys were able to argue points of the Bristol Meyers and railroad cases and won in the Supreme Court. They also are arguing that Philadelphia Courts of common wealth has no jurisdiction to where non-residentual plaintiffs can have their cases heard in their court and seeking representation there because they are not affiliated anyway shape and form to that state. They threw out the Secant Medical, and Prodesco as two of them that has no affiliation of doing business which makes no sense but our attorneys agreed that they cannot sue them for lack of substantial evidence. This is by far over with. I think we have to transfer our cases back to NJ courts if they get their way. So they dont have to pay for their crimes because Judges are tired and these tort cases were never meant to be handled in smaller courts but consolidation is what I believe they are headed for almost like class action suits.

        • Still Standing says:

          You will also have the ability to file in the state where you live. Here is an interesting thing to think about, though. If you have an attorney from California and you want to file your case in say, Texas, because that is where you live, your attorney must get licensed in that state to practice. Same goes I imagine for New Jersey. Some states have reciprocity, but many don’t and attorneys have to start at the bottom and pass that state.’s bar exam. I was reading a law site last night and saw an advertisement for an attorney in Maine. It said call our office if you are a Maine resident. Haven’t seen that specification before in an ad. Licensing to practice in federal courts is a different process entirely. This could really change the legal landscape. I hope your attorneys are staying on top of this and communicating with you about it. I imagine Personal injury attorneys who do mass torts have that federal distinction to practice law and maybe they have their license in some of the states where the judicial hellholes are or they have a partnership with an attorney in a state they want to represent clients in. This will be a very complicated process.

          • Jane Akre says:

            There were a number of local attorneys who stopped up in Charleston WV to partner with out of state firms and provide that “local” connection… no problem. It was worth their while and they became part of the executive committee

          • Still Standing says:

            Jane, There wasn’t a way to continue this discussion under your post, but I’m wondering how that would work in state cases vs federal. Federal law is federal law across the board,, but every single state has different laws that the attorney would have to know to mount a good state case. Why would an attorney in Texas need to partner with an out of state attorney on a state case when they could just handle it themselves and keep the all the money? This could be a big mess. Case costs will definitely go up for the litigant because where multiple cases were filed in state courts and they shared expenses somewhat like an MDL, , now the number of litigants will be less, thus costing more for the plaintiff.

          • Jane Akre says:

            I was referring to the MDL…my understanding ( not a lawyer) is the out of state cases would need to partner with a local attorney to practice there. There is an exception is my understanding. An out of state counsel can do a direct filing order in the MDL allowing them to file directly bypassing the local counsel. The big firms generally do that is my understanding.

          • Shirley says:

            Still Standing Your right it`s all complicated. Especially when my attorney quit the law firm and I don`t know who my attorney is at this point and they wont return my calls when I have left messages says I need to find a local attorney to handle my case but the problem is that no attorneys I have called are taken any more mesh cases. And what is really sad is I`ve been with the firm in Philly since 2012 yet court since 2013 and not much has been done to my case since 2014. So not only am I frustrated because I thought it was sealed in this court system as being okay with jurisdiction of handling my case for 2 years ago. Now this UGH!

  7. Sad says:

    Jane, According to Law 360 news https://www.law360.com/articles/941004/pa-judge-urged-to-move-mesh-cases-after-justices-ruling -an article from Kline & Specter looks like the cases are challenged just as you mentioned to be thrown out because of jurisdiction and/or Plaintiffs not residing there or defendants never sold products that were implanted in injured women there. It was challenged 2 years ago and dismissed. I am praying it`s not granted. This is so unfair for all the injured women and says a lot about our Judicial system for sure. There will be lots more protest I can tell ya there will also be more public redress and J&J BS and Ethicon will be challenged by force of Media if this happens. Many women are injured by their products than what they are aware of and they are sick and tired of the way they are treated by doctors also who treat their injuries as if they are not life threatening. Many women have died not even knowing it was their toxic devices implanted in them that caused other diseases to arise and killed them. I pray one day that they are challenged to test these theories I speak of on one of their employees or one of their attorneys for sure they would have a different outlook on life and what they will see through the eyes of a warrior. I was told in the beginning that my life would change drastically I would be able to walk in comfort and do normal activities with much comfort never did I once believe it was going to effect my livelihood with much more stress and take away my sex life my relationship status plus activities I would normally be doing. I cannot work anymore I cannot shop like I used to I cannot perform duties in the home like I used to without taking breaks and it takes me longer to do these things because of the pain. No doctor will touch me because of the high risks involved. Nothing they claimed happened for me of a better healthier life. The doctors don`t know what to do about explanting the toxic materials totally. They only are trained in implanting them and its by their reps how they perform the operations and tell their patients that these products will help them live and healthier life and be able to live a more productive life without leakage from their bladder or incontinuity and or pain of suffering from retention challenging the getting up through the nightime hours with more rest and assured that no complications which is all a lie. Scar tissues and nerve damage says otherwise not to mention the infections and injuries of other organs and pain that comes on when a nerve shoots up from the vaginal area to your brain without a warning. It`s crazy how these manufacturers and their representatives did not fully test this on a human being before selling them as a product to prolong and live a more productive life theory. They just bypassed the FDA and now they are trying to use supreme court rulings in one state towards saying we cannot obtain a lawyer from commonwealth (Higher Court) than our own judicial courts which lacks jurisdiction. Just as Manufacturer search for the best representation we also (the injured) seek the best representation for our cases to be handled and heard by a more reliable firm who deals and handles these kind of cases. This isn`t binge shopping this is common sense. Everyone who has ever been injured knows you dont hire an attorney locally for lack of equality and control of being trialed fairly in a judicial hearing for lack of interest. This just isn`t practical not in any case. What they are seeking is the easiest way out and cheapest while they still are selling these products because women are afraid to speak up and fight them with every breathe they have. They are pulling at any straws they can to be able to throw all these cases out of court as they have been doing from the start. It`s about power and greed to them and to us it`s about justice and the best way is for us to seek justice is too match their power through a judicial system who will listen to both sides and make a judgement through judge and jury who isnt a kangaroo court. I didn`t find my lawyer through a catalogue or even an add. I did extensive research and challenged the best representation where my case could be heard in a higher court away from my home base to seek justice up against a more powerful group of people (lawyers) who have knowledge and can challenge the judicial system of what I am, have been and will always be going through because of the defective products. None of which they manufactured in the state of Missouri but manufactured in the Eastern states and sold abroad. It`s time to speak for the benefit of what all of us injured warriors of transvaginal mesh have been going through and what it had cost us and continues to do so on a daily basis and it`s time for them to pay in the highest form of a judicial system who hears our pleas. These products need to be more safe and more warnings to those who choose to be implanted with them. We were not conferenced in all the affects this could have on our lives our health. We were not told there would be all the complications because they were suppose to be safe to implant but not fully tested. This is upsetting just knowing they found a loophole to challenge the courts of our choosing. Stay tuned to see what will happen in the next hearing will they or wont they be granted or will the Judge challenge it in another approach??? This still won`t stop us from seeking Justice that`s for sure. Thank You Jane we appreciate you keeping us informed.

    • Jane Akre says:

      Thank you Sad. The court has always been slanted. I remember early on Judge Goodwin didn’t want the women catastrophically injured being wheeled into his courtroom. Why not? They didn’t represent the middle road of injuries. But it is a reality so why not have them represented too? Makes no sense.

  8. S rankin says:

    Can someone explain this to me like I’m a 3year old? I have been awarded in the class action vaginal Mesh lawsuit and reside in Cslifornia where the surgeries were performed. Thank you! I mailed my agreement over a month ago certified with no response or proof that they relieved it. Atty group Beasly. Anyone else with this issue?

    • Jane Akre says:

      Have you received a settlement letter? Beasley Allen is a good group,,,, they’ve headed the talcum powder litigation.. This means the supreme court agreed that you can’t hear you case in any old court…. has to be where you live or where the injury occurred or where the company is headquartered or does business.

  9. Still Standing says:

    Here is a new ruling regarding out of state residents with Boston Scientific mesh in Philadelphia. Three out of state claims were dismissed today. They will refilecases in the appropriate jurisdiction.

    http://www.thelegalintelligencer.com/id=1202793760838/Three-Pelvic-Mesh-Cases-Moved-Out-of-Phila-Court?slreturn=20170624200835

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