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Edwards v. Ethicon Set in WV for August

Robert C. Byrd federal courthouse, Charleston WV

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.

EDWARDS V ETHICON, (Case No.), Friday, August 12 is jury selection. Trial commences Monday, August 15, 2016, 8:30 a.m. Pretrial conference July 21, 2016 to explore any final options such as settlement.

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

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.

Background

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.

 

There is no trial date yet set for MULLINS V. JOHNSON & JOHNSON/ ETHICON , (Case No.2:12-CV-02952) in Charleston, WV.

Even though the pretrial was supposed to be completed June 30, 2016, the case is continuing with pretrial filings, several every day of July so far.

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 Iakovlov, Pathologist

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

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.dr donald ostergard

 

Medical Exams

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

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

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.

Mullins complaint, July 11, 2012, U.S. District Court, Southern District WV. Background story on MND here.  

Shreading, withoutatrace.biz

Shredding, withoutatrace.biz

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.

See the background story on Mesh News Desk here and here.  ## 

 

18 Comments

  1. Paula C says:

    I don’t understand how they can get away with the spoliation issue. This all screams corrupt

    I also do not understand how women can be put through medical examinations. After numerous operations, repairs etc, how can a medical examination be admissible after the fact not to mention the many health issues that will keep arising for the rest of our lives.

  2. Judith S says:

    I would like to see new post.

  3. K says:

    Your Honor please deny the defendants motion on all the above so they will stop this madness and we can get better. We all need money for extensive therapies. I believe if they quit getting their way with all these motions and filings they will stop this. You can help speed this along by denying their request.

  4. Kitty says:

    I bjueve that plaintiff can refuse to undergo a medical exam by the “organized family”

    • Jane Akre says:

      Not sure you can refuse Kitty, they need an opportunity to assess whether you are truly mesh injured by their own doctors. It is cruel but fair. If you were defending yourself and your company and you truly believed the other side was manufacturing injuries, you too would want your opportunity to examine the “injured”…. but you’d think there could be a way to minimize further trauma you all have already endured.

  5. Kitty says:

    Is Dr Joseph Carbone a Psychiatrist? Whoa!!!

  6. Kitty says:

    Jane…I am very concerned and suspicious of thr 2 female Drs that are asked to do an exam on victims. Could u please give us that on line site that gives names of Drs that that get kick backs tfor using various me
    products iAcell et al

  7. Advocate says:

    Kitty,
    The doctors that the manufacturers use, are called IME Doctors. The term IME means Independent Medical Examination. Please understand, A defense team will never select an IME Doctor who tends to lean in the direction of a plaintiff. They are paid by the Defense to offer an opinion as a doctor not involved in your care history. You are simply a patient for them to review.
    This IME report is PAID for by the Defense team. The same as the Plaintiffs pay for their expert doctor witness. The reason of the competing opinions, is to keep one side from having the “only” expert on your medical condition. Defense would not bring in an IME that would say they are in agreement with your doctors on the cause of your injury. To do so, would be to undermine their position that the mesh didn’t cause all or even most of your medical issues.
    They use these doctors to discredit your medical records. They would also seize on anything within the records, entered by previous doctors examining you, who may initially have pointed to other causation of your injury, if such a record existed.
    Bottom line is…this is the medical equivalent of an expert witness to rebut your expert witness…your records. Both sides of a tort action are entitled to their own examining experts, regardless of the type of injury, if they both so choose. You do not have an option about allowing or not allowing an examination.

    • Kitty says:

      Well… Drs don’t tend to be crooks. The evidence is plain to see. What are they going to see by looking in a woman’s V? 2..let me repeat..2 Drs should collaborate on such a sensitive issue.

  8. K says:

    I think an independent agency should select dr’s to do the examinations. Why would ethicon need a say so. that would be fair.

  9. k says:

    The MDL IS WORTHLESS!!!!! HOW WILL WE EVER KNOW THE TRUE VALUE OF THESE CASES IF THEY KEEP SETTLING THEM BEFORE TRIAL!!! HOW MUCH LONGER WILL THIS BE ALLOWED!!!
    Updated 7/25/2016
    The trial in Edwards v. Ethicon, Inc., et al., 2:12-09972, scheduled for August 12, 2016 at 8:30 a.m. has been cancelled because the case was recently dismissed by the parties.

  10. Still Standing says:

    K, the purpose of MDLs is to move cases to settlement, not trial. That is why they started forming MDLs, to theoretically unclog the court system and reach settlement before trial. Each plaintiff and defendant has the right to settle at anytime. The judge cannot control this at all. Trials really dont set the value of all of these cases. Some plaintiffs have walked away from a jury trial wth nothing, although they might have had just as serious injuries as the women who got millions. So, which trial would be the standard? The entire thing is a mess, really. It has become a bit of a staring contest where no one blinks. It is truly not a process that puts the reality of the injured women’s pain and suffering as the priority.

  11. k says:

    Why subject all of the women in the Mullins trial to all the medical examinations when J&J will settle on the eve anyway. They are settling the cases one by one before trial so the MDL cannot place value on the cases. Some one needs to take control of this mess.

  12. Toni says:

    Yes K your correct. Why just one at a time why waste court time just dragging it out because they want to wait and wait hope we die and all these attorneys love dragging it out make that big money

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