Robert C. Byrd federal courthouse, Charleston WV
Mesh Medical Device News Desk, July 18, 2016 ~ Remaining on the docket and set for trial in the multidistrict litigation against Johnson & Johnson is the August 12, 2016 case of Edwards v. Ethicon, Case No. 2:12-cv-09972.
*UPDATE ON THIS CASE...Edwards v. Ethicon has been dismissed after reaching some agreement. The trial will not take place.**
Ms. Edwards was implanted at Piedmont Healthcare, Atlanta, GA with a TVT-O by Dr. Harold Wittcoff.
Court documents show Ethicon attorneys, want to exclude the expert opinion of Dr. John T. Steege, who would testify TVT-O was defective and caused her present day pain.
The defendant corporation is Ethicon, a division of Johnson & Johnson, the manufacturer facing the largest number of mesh cases (33,874 as of today) consolidated in this federal court among seven manufacturers. Ms T. Edwards of Georgia, and her husband are the plaintiffs.
TVT-O from TVT Meshed Up Mesh, UK
This is the fifth delay for this trial. Attorneys are Mark Mueller, John Fabry, Breanne Vandermeer for Ms. Edwards and Christy Jones and Dave Thomas for Ethicon.
The Counts include Negligence, Strict Liability-Manufacturing Defect; Failure to Warn; Defective Product; Design defect; Fraud and fraudulent concealment, Negligence, Breach of express warranty, violation of consumer protection laws, gross negligence, unjust enrichment, loss of consortium and punitive damages.
A defense experts include Dr. Elizabeth Kavaler, previously seen in the Gross trial as well as Dr. Stanley Zaslau.
The case was filed December 31, 2012.
This trial is limited to six days writes Judge Goodwin in a June 12, 2015 order.
Edwards v. Ethicon, see the Complaint here.
The TVT-O has already been found to be defective in this same courtroom before Judge Joseph Goodwin in the Huskey v. Ethicon trial. See the background story here. Also in the Linda Batiste case in Dallas in April 2014, the jury concluded the TVT-O made by Ethicon was defective and awarded Ms. Batiste $1.2 million. See the story here.
Meanwhile, Waves of cases will be heard in groups and are currently on a pre-trial schedule heading for trial in Charleston federal court.
This is a trial of 37 plaintiffs appearing at one time before Judge Goodwin in Charleston, WV. All of the plaintiffs had been implanted with Johnson & Johnson’s TVT (tension-free vaginal tape) and all are from West Virginia. Even though different implanting doctors are involved, the injuries are similar enough to consolidate them into one case before Judge Goodwin in this multidistrict litigation (MDL).
Pre-Trial is Not Concluded
Also filed on this day, a Notice of Deposition for Dr. Vladimir Iakolvev. He is the Doctor from Toronto, Canada who was present in the Boston Scientific trial of Egnayhem and three other defendants.
Dr. Vladimir Iakovlev, is a Pathologist and the Director of Cytotechnology at St. Michael’s Hospital in Toronto. The anatomic pathologist looks at biomarkers and conducts pathological evaluations of explanted transvaginal mesh, among other materials.
They also filed a notice to cancel the deposition of Ronald L. Rink of Pittsburgh, concerning the destruction of documents by J&J.
Dr. Bruce Rosenzweig
July 20 2016, the deposition of Bruce A. Rosenzweig will take place in Chicago.
The deposition of Dr. Donald Ostergard will take place July 22, 2016 in Denver, Colorado.
July 20, one of the Mullins Plaintiffs will have to under a medical exam by Dr. Catherine Matthews at Wake Forest Baptist Health in Greensboro, NC.
On that same date another plaintiff must submit to a medical examination conducted by Dr. Joseph Carbone in Danville, VA. Another plaintiff in the group submitted to a medical exam July 13th 2016 conducted by Dr. Kimberly Kenton, in Lake Forest, Illinois. These doctors will conduct the exams on behalf of Ethicon/ Johnson & Johnson.
Fidelma Fitzpatrick, Motley Rice
The deposition of Dr. Janet Tomezsko will take place in Evanston, Illinois July 19th 2016 to be conducted by Fidelma Fitzpatrick of Motley Rice.
Dr. Harry Johnson was deposed relating to six plaintiffs in Mullins on July 13, 14 and 15 in Baltimore MD as filed by Aimee Wagstaff.
On July 13th, the defendant filed an objection to taking the deposition of Dr. Catherine Matthews. The Defendant objected to providing work that had been compensated by the defendant or expert fees charged. Dr. Joseph Carbone, MD will be deposed on July 22 in Danville VA pertaining to two plaintiffs in the Mullins case, submitted by Jeffrey Kuntz of Wagstaff & Cartmell.
Dr. Stanley Zaslau, MD
The deposition of Dr. Stanley Zaslau took place July 14th in Morgantown, WV.
Risk Benefit or Safer Alternative Design
Much of the last minute wrangling has to do with the question- How must a Plaintiff Prove defective Design. Does she need to show a safer design existed?
In the latest filing today, July 18, Ethicon asks Judge Goodwin to reconsider its ruling that Plaintiffs are not required to present evidence that a proposed safer alternative design would have reduced specific injuries or, alternatively, Ethicon asks the Court to certify the issue to the West Virginia Supreme Court. If granted, the move would further delay setting of a trial date in the Mullins case.
In the plaintiffs’ opposition to the above, Bryan Aylstock and Thomas Cartmell write on July 11th, that the bottom line is that a product constitute a defective design when its risks outweigh its benefits. Design defect can be established by this risk-benefit analysis and does not need to rely on the existence of an alternative design. See Doc #903. It has already been established ad nauseam, says their motion filed July 11, 2016.
You might recall, in other pelvic mesh trials we've seen the debate between laser cut versus mechanically cut mesh, the laser presumably being superior to the other because the serrated edges are smoothed in the heating process. If that is what the state requires, that is what Plaintiffs’ attorneys must argue, even though they ultimately may believe the design of pelvic mesh and the material are the problems for which there is no safer design or material.
This case will combine the efforts of at least a half dozen plaintiffs firms and promises to be a huge case when and if it ever makes it to court. Already deposed are Dr. Dionysios Veronikis, M.D. and Dr. Jerry G. Blaivas, M.D. on July 7th in New York City, related to two plaintiffs.
In a filing June 27, 2016, plaintiffs ask to amend the original complaint and include the spoliation issue to case which is recognized under West Virginia law to be a stand-alone issue.
J&J purportedly destroyed hundreds of thousands of documents that were related to mesh litigation before any trials were heard. Plaintiffs have since determined that more instances of purported spoliation have occurred since it was first revealed. See PTO#100 Doc #1069 Feb. 4, 2014 on spoliation.