JPMDL to Reconsider Proton Pump Inhibitor MDL at July 27 Hearing

nexium-b-1The Judicial Panel on Multidistrict Litigation (JPMDL) will hear arguments at a July 27 hearing on a new motion to centralize proton pump inhibitor (PPI) drugs in a multidistrict litigation. The case is In Re:  Proton-Pump Inhibitor Products Liability Litigation [No. II], MDL Docket No. 2789, JPMDL.

The drugs at issues include Prilosec, Nexium Protonix and Dexilant. The hearing order lists 163 cases in 28 federal district courts and a decision will likely come in mid-August.

Kidney injuries

In their May 31 motion, the moving plaintiffs seek centralization before U.S. Judge David R. Herndon of the Southern District of Illinois.

The plaintiffs allege that PPIs cause kidney injuries including acute interstitial nephritis, chronic kidney disease and end-stage renal disease.

The plaintiffs note that in January, the JPMDL denied centralization of PPI cases, but say later significant developments “warrant a second look at consolidation.”

The defendants are AstraZeneca Pharmaceuticals LP, Proctor & Gamble Co., McKesson Corp., Takeda Pharmaceuticals USA Inc., Novartis Pharmaceuticals Corp., Pfizer Inc. and Pfizer subsidiary Wyeth.  The defendants’ responses are due June 27.

The plaintiff attorneys are Christopher A. Seeger and Jeffrey Grand of Seeger Weiss in New York.

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Jury Awards Boy $15 Million for Depakote Birth Defects

Depakote Birth DefectsA federal court jury in East St. Louis, IL, awarded $15 million in compensatory damages on June 9 to a boy who was born with spina bifida as a result of his mother’s use of Depakote when she was pregnant.

The case is E.G., et al. v. Abbott Laboratories Inc., No. 15-702, S.D. IL.

The jury ruled that Abbott Laboratories Inc. failed to warn Christina Raquel about the risk of birth defects when she took the drug. The mother had a prescription for the antiepileptic drug Depakote ER and her child, identified only as E.G., was born in 2007 with birth defects.

Adequate warning

Abbott argued unsuccessfully that it did adequately warn Raquel’s physicians about the risk of Depakote during pregnancy.  It also claimed that the mother failed to prove that the warning or lack of warning caused her son’s birth defects.

Raquel sought compensation for past and future medical expenses, life-care and future lost wages or reduced earning capacity.

Depakote is approved to prevent seizures, to treat manic episodes associated with bipolar disorder, for migraine prophylaxis and to treat certain types of seizures.

Judge Nancy J. Rosenstengel presided over the trial. Raquel’s attorneys were John E. Williams Jr. and John T. Boundas of Williams Kherkher Hart Boundas in Houston.

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Here’s Why Law Firm Social Media is a Waste of Time

By Jayne Navarre.

Attorneys were slow to catch the social media wave. But once it looked safe to go into the water—the firm next door was doing it—a majority followed.

  • Legal marketers got busy setting up a firm presence on Facebook and Twitter—featuring Super Lawyers, seminars, and seasons’ greetings.
  • Those with greater resources played with Instagram and Pinterest. The goal was to get likes, shares, and comments, with the reward being greater exposure and business opportunities.

But then something very disappointing happened. The “organic” social media produced by law firms—the stuff that was supposed to create conversation and conversion—appeared to be mostly seen and applauded by a handful of their own employees, lawyers, and a few real-life friends and relatives.

Don’t take my word on that, there is evidence.

According to the April 2017 Greentarget and Zeughauser Group survey, social media ranks at the bottom of “most valued content created by law firms.” That’s right, just 4 percent give a damn about your tweets and status updates.

Yet a whopping 91 percent of marketers, who were also surveyed, report they are “investing in social media”!

More attorneys are using digital and social media to reach clients and prospects. To discover if you’re outpacing your competitors, take the new 2017 Attorney Social Media & Digital Marketing Survey. It takes only 2 minutes.

To be fair to the 91 percent, marketing budgets differ from firm to firm. According to the April survey, blogs were seen as a “credible source of legal, business and industry news and information” by 75 percent of in-house counsel compared to 65 percent in 2015. But it is likely that many marketers consider blog writing, editing, posting, and maintenance to fall in a firm’s social media bucket, and thus the 91 percent. I hope I am not being generous.

Still, the April survey authors suggest that firms’ “methods for client alerts and newsletters are part of well-established practices, whereas [emphasis added] social media sharing and amplification is more time-intensive and expensive.” If true, it certainly begs the question: What are attorneys getting in return for their time and expense?

Kill organic social media for the enterprise

Avinash Kaushik blogs at Occam’s Razor. If you’re unfamiliar with his blog or the scientific rule of Occam’s Razor, here’s the essence: The simplest of competing theories are preferred to the more complex.

I assure you that he’s one of the good guys and someone attorneys should be listening to, on a variety of levels and topics.

More recently, Avinash challenged marketers to stop wasting enterprise resources on “organic social media”—defined as the kind where you post meaningful things about your firm to build brand loyalty. (And “hope” for increased sales to justify your efforts.)

He writes, “You can imagine how gosh darn excited I was at the advent of Facebook and Twitter (first real social networks). There were a billion people there, spending a meaningful amount of time on these wonderful platforms. Excitedly, brands could have a presence (a “page”) where they could give meaningful updates (info-snacks) to be a part of the organic conversations people were already having by the tens of millions. Daily meaningful brand connections would be converted into brand familiarity, shifts in brand perception, feeding brand loyalty. #orgasmic”

And goes on to say that: “None of the above transpired….”

How does he know? He says all the data you need to see, that your organic social media on Facebook and Twitter has tanked, can be found in three public bits of information. You don’t need to understand analytics, you don’t need to dig, you don’t need to hire a consultant. You just need to look.

Crunching the numbers

Hypothetically speaking, let’s say your Facebook page has 6,000 warm bodies who “like” you. (Probably a stretch for most law firms, but I’m going for a round number.)

  1. Applause Rate. Your most recent post—congratulating newly anointed Super Lawyers—has 50 likes or emotions (I heart this post!). Divide 50 by 6,000 to get your applause rate, which is…drum roll…a paltry .00833 percent. (“A painful stab in the heart.”)
  2. Conversation Rate. Now take the total number of comments on your post—seven—including “Congratulations,” “Well-deserved,” “He gets his work ethic from his mom!” and etc. Divide that by your universe of 6,000 warm bodies and your conversation rate is a glass shattering .00116 percent.
  3. Amplification Rate. This is the number that confirms whether you truly added value on a human scale or merely “pimped” your company. Let’s say you had three shares—one from a proud dad, one from a best friend, and one from the marketing manager who is paid to do it. Three divided by 6,000 is 0.0005%. Heart stopping, right?

With this simple analysis—the potential to engage 50 weeks +7 days +3 people per post—you can decide what part of your marketing budget you should allocate to your enterprise social media. The answer is zero.

Wait, you say that’s not fair? Alright, let’s add up the applause, conversation, and amplification rates on your Twitter and Instagram, and, being generous, your firm-branded blogs. Let’s compute the monthly, quarterly, and yearly totals. There, is that any better?

To be clear, marketing and enterprise brand building differs from business development (sales)— but, you need both. Arguably, a personal Facebook, LinkedIn, or Twitter presence in deft hands can be an effective tool for “networking” for business, but, it’s obvious to me that organic social media for the enterprise isn’t moving the needle—I’ve looked. (Please correct me if your firm is an outlier.)

Are your social media platforms useless? No, says Avinash. From an advertising perspective, the couple billion people on Facebook and hundreds of millions on other social channels are an audience that might be of value to your law firm. Should you kill your organic social strategy and switch to a paid social media strategy? Yes.

Buy advertising

Don’t waste your money on fuzzy organic social media goals. Buy advertising from Facebook. Buy advertising from Twitter, Instagram, and yes, LinkedIn. All of which can give your social media strategy purpose.

“Your [social advertising] strategy can drive short and medium-term brand and performance outcomes,” says Avanish, “You can set aside the useless metrics like impressions and 3-second video views. Set aside hard to judge and equally useless Like and Follow counts. Measure the hard stuff that you can show a direct line to company profit. Define a purpose for the money you are spending.”

I completely agree. In tests I’ve run on organic posts versus promoted paid posts, paid always outperforms. Sure, the click ratio on a paid post can be dismal—particularly if you’re not using best practices—but at least you are reaching a new audience. Even one inquiry from a potential client is a better result than a mom or brother liking your Super Lawyers post.

I suggest that you need a purpose, a strategy, and a plan. When you get that plan, then, you need great writing. Writing a brief is very different than writing something the public, even in-house counsel, wants to read. I know “we’re” getting better according to the April survey, but not quite very good is not where you want your law firm to be.

Jayne Navarre
Jayne Navarre

Jayne Navarre + Associates has more than 20 years’ experience working exclusively with law firms on strategy for content and communications. The company is forward thinking, entrepreneurial, and works with some of the best law firms, both in the U.S. and internationally. Contact 786-208-9108,, or

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Mistrial Declared in Missouri Talc Case after Supreme Court’s Bristol-Myers Ruling

talc johnson & johnsonA Missouri judge granted a mistrial in Johnson & Johnson’s baby powder trial in Missouri today after the U.S. Supreme Court’s ruling in Bristol-Myers’ Plavix Case yesterday.

The court granted Johnson & Johnson’s motion for a mistrial, which cited Bristol-Myers Squibb v. Superior Court of California. The decision held that California courts lack specific jurisdiction to entertain the nonresidents’ claims.

Johnson & Johnson sought the mistrial in Swann v. Johnson & Johnson, which involves the claims of more than 60 women, many of whom were not from Missouri. The family members of three of those women, all deceased, were the plaintiffs in this month’s trial. Only one was from Missouri.

“Under the reasoning of Bristol-Myers, the mere fact that nonresident plaintiffs have joined their claims with those of a handful of Missouri residents does not suffice to give rise to personal jurisdiction over the Johnson & Johnson defendants with respect to their claims,” says 22nd Circuit Court in St. Louis Judge Rex Burlison.

Dramatic implications

The mistrial decision could have dramatic implications for the rest of the Missouri trials, the next of which was slated for August, according to the National Law Journal. Some 1,700 women allege that they got ovarian cancer from prolonged use of talcum powder have filed claims in suits in Missouri.

But lead plaintiffs attorney Ted Meadows immediately refuted the idea. Ted Meadows, of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama says, “After reviewing this morning’s Supreme Court ruling, and based on evidence and statements now in the record, we believe this litigation can go forward in Missouri courts. ”

Johnson & Johnson has so far lost jury verdicts in Missouri totaling roughly $300 million. Last month, a Missouri jury awarded $110 million in an individual case. Johnson & Johnson won one verdict earlier this year.

It was the fourth mega-verdict delivered against Johnson & Johnson, which has known about the ovarian cancer risks since the 1970s. In 2016 juries returned verdicts of $72 million, $70 million and $55 million against J&J in lawsuits filed by women with ovarian cancer.



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U.S. Supreme Court Strikes Down California Ruling in Bristol-Myers’ Plavix Case

Plavix bleeding side effects

The US Supreme Court ruled today that California courts lack specific jurisdiction to entertain the nonresidents’ claims against Bristol-Myers that Plavix damaged their health.

The Court ruled that:

(a) The personal jurisdiction of state courts is “subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause.” Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 918. This Court’s decisions have recognized two types of personal jurisdiction: general and specific. For general jurisdiction, the “paradigm forum” is an “individual’s domicile,” or, for corporations, “an equivalent place, one in which the corporation is fairly regarded as at home.” Specific jurisdiction, however, requires “the suit” to “aris[e] out of or relat[e] to the defendant’s contacts with the forum.”

The “primary concern” in assessing personal jurisdiction is “the burden on the defendant.” World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 292. Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question. At times, “the Due Process Clause, acting as an instrument of interstate federalism, may . . . divest the State of its power to render a valid judgment.”

(b) Settled principles of specific jurisdiction control this case. For a court to exercise specific jurisdiction over a claim there must be an “affiliation between the forum and the underlying controversy, principally [an] activity or an occurrence that takes place in the forum State.” When no such connection exists, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State. The California Supreme Court’s “sliding scale approach”—which resembles a loose and spurious form of general jurisdiction—is thus difficult to square with this Court’s precedents. That court found specific jurisdiction without identifying any adequate link between the State and the nonresidents’ claims. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California does not allow the State to assert specific jurisdiction over the nonresidents’ claims. Nor is it sufficient (or relevant) that BMS conducted research in California on matters unrelated to Plavix. What is needed is a connection between the forum and the specific claims at issue.

(c) The nonresident plaintiffs’ reliance on Keeton v. Hustler Magazine, Inc., 465 U. S. 770, and Phillips Petroleum Co. v. Shutts, 472 U. S. 797, is misplaced. Keeton concerned jurisdiction to determine the scope of a claim involving in-state injury and injury to residents of the State, not, as here, jurisdiction to entertain claims involving no in-state injury and no injury to residents of the forum State. And Shutts, which concerned the due process rights of plaintiffs, has no bearing on the question presented here.

(d) BMS’s decision to contract with McKesson, a California company, to distribute Plavix nationally does not provide a sufficient basis for personal jurisdiction. It is not alleged that BMS engaged in relevant acts together with McKesson in California or that BMS is derivatively liable for McKesson’s conduct in California. The bare fact that BMS contracted with a California distributor is not enough to establish personal jurisdiction in the State.

(e) The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.

 272 plaintiffs sue

A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health.

BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California.

The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction.

But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding
scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State.

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Trump declares war on the Department of Justice

Rod J. Rosenstein, the deputy attorney general, encouraged Americans in a statement issued late Thursday to be “skeptical about anonymous allegations” after a string of recent news reports about the evolving focus of the special counsel’s investigation into Russia’s election interference and possible collusion with President Trump’s associates.

“Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country — let alone the branch or agency of government — with which the alleged sources supposedly are affiliated,” Mr. Rosenstein said in the statement.

He added: “Americans should be skeptical about anonymous allegations. The Department of Justice has a long-established policy to neither confirm nor deny such allegations.”

He did not cite specific reports. The Justice Department released Mr. Rosenstein’s statement after 9 p.m., a few hours after The Washington Post reported that the special counsel was investigating the business dealings of Jared Kushner, Mr. Trump’s son-in-law and adviser. That report was attributed to unnamed American officials.

Asked about the impetus for the statement, a Justice Department spokesman declined to comment. Mr. Rosenstein did not respond to an email seeking comment on Thursday night.

This statement appears directed at reporters covering this scandal. The Times and the Post are not going to disclose their confidential sources, but if reporters are talking to FBI agents or Treasury Department officials in FinCEN about money laundering investigations overseas, or to intelligence officers or their foreign intelligence counterparts in Europe, I would take this as a veiled threat that the FBI may be monitoring reporters communications with their sources overseas. If that is what Rosenstein meant to imply, that is a big effin’ deal.

There was some speculation last night that Rosenstein may have issued this statement at the direction of the White House because his “statement aligned with the president’s open frustration with unflattering leaks. Mr. Trump has called stories about the investigation “fake news” and complained on Twitter about a Washington Post report on Wednesday night that the special counsel, Robert S. Mueller III, was investigating the president himself for possible obstruction of justice. That story was also attributed to unnamed sources, as was a New York Times article that same evening about Mr. Mueller’s request for interviews with three top intelligence officials.”

But then this morning, our Twitter-troll-in-chief turned on Rosenstein while confirming that he is under investigation for obstruction of justice. Trump Acknowledges He Is Under Investigation in Russia Inquiry:

President Trump acknowledged publicly for the first time on Friday that he was under investigation in the expanding inquiry into Russian influence in the election, and he appeared to attack the integrity of the Justice Department official in charge of leading it.

In an early-morning tweet, the president declared that he was “being investigated” for his decision to fire James B. Comey, the former F.B.I. director. And he seemed to accuse Rod J. Rosenstein, the deputy attorney general, of leading a “witch hunt.”

For the rest of the story visit the Blog for Arizona.

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Public Citizen and PoPS Intervene for Students Victimized by Predatory Schools

WASHINGTON, D.C. – The Trump administration cannot be trusted to protect students defrauded by predatory for-profit colleges and career training programs that receive federal funding, Public Citizen and the Project on Predatory Student Lending said in a motion to intervene filed today in a suit pending in the U.S. District Court for the District of Columbia.

The two groups filed the motion on behalf of Meaghan Bauer and Stephano Del Rose, former students of the for-profit New England Institute of Art (NEIA) in Brookline, Massachusetts. The students allege that NEIA engaged in unfair and deceptive practices against them and other students that left them with a useless education, few job prospects and a mountain of debt. Thousands of students around the country have faced similar circumstances after dishonest recruiters lured them to enroll in predatory schools.

Bauer and Del Rose are counting on an Education Department rule finalized by the Obama administration that prohibits schools receiving federal funds from relying on forced arbitration agreements with their students. This “Borrower Defense” rule will ensure that Bauer and Del Rose have their day in court, but an industry group has filed suit against the Education Department to block the rule. Yesterday the Trump administration announced it would delay key parts of the rule until the litigation is over and begin a new rulemaking to reconsider the rule.

“The Borrower Defense rule is on solid legal ground and has already been the subject of months of negotiation and thousands of public comments,” said Julie Murray, attorney, with Public Citizen’s Litigation Group. “We don’t need more consideration of this rule. We need an Education Department with the spine to stick up for borrowers and the will to abide by its obligation to enforce the law. Since we clearly don’t have that, our clients have moved to intervene in the litigation to defend their interests.”

“Secretary Betsy DeVos’s decision to delay key pieces of the Borrower Defense rule is a disgrace,” said Toby Merrill, director, Project on Predatory Student Lending of the Legal Services Center of Harvard Law School. “The Department is using this litigation as cover for avoiding enforcement of the rule, to the detriment of borrowers like Ms. Bauer and Mr. Del Rose. The delay announced by the Department serves to line the pockets of for-profit executives at the expense of vulnerable students and federal taxpayers. It doesn’t serve borrowers.”

Forced arbitration clauses require students to submit any dispute that might later arise between the students and the institution to binding arbitration, a private process with little right to appeal, instead of a court of law. Students typically cannot band together to bring their claims jointly in arbitration, and they often are forbidden from publicly discussing the arbitration process.

Read the motion here.

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6th Ovarian Cancer Trial – Jury Hears Opening Statements in Missouri’s

Missouri’s sixth trial involving Johnson & Johnson’s talcum powder products and their alleged association with ovarian cancer is now underway in the 22nd Circuit Court in St. Louis.

During opening statements last Friday, attorneys for three women who died of the disease asserted that the health care products giant continued to market its talc-based powders, even as it was aware of mounting scientific evidence linking genital talc use to ovarian cancer. They also accused Johnson & Johnson of specifically marketing its Baby Powder and Shower-to-Shower franchises to African-American women, though some research suggested that they were more susceptible to the disease. (Case No. 1422-CC09326-01)

“We will be monitoring this trial closely, as it could provide insight into how other juries might rule in similar claims,” says Sandy A. Liebhard, a partner at Bernstein Liebhard LLP, a nationwide law firm representing victims of defective medical devices, drugs, and consumer products.

Talcum Powder Verdicts

The talcum powder lawsuits currently at trial in Missouri were all filed on behalf of women who had allegedly incorporated Johnson & Johnson’s Baby Powder and Shower-to-Shower products into their daily feminine hygiene routine for more than 25 years. All were allegedly found to have talc in their ovaries.

Johnson & Johnson is named a defendant in more than 3,000 talcum powder lawsuits nationwide, all of which were filed on behalf of women who allegedly developed ovarian cancer following the regular and repeated use of the company’s talc-based powders for feminine hygiene purposes. More than 1,000 claims have been centralized in Missouri’s 22nd Circuit Court, where four other talcum powder plaintiffs have already been awarded compensatory and punitive damages ranging from $55 million to $110 million. Johnson & Johnson has prevailed in just one trial.

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JPMDL Transfers Talc Cases from Missouri to Defense-Friendly NJ Court

talc johnson & johnsonOverruling the objections of the plaintiffs, the Judicial Panel on Multidistrict Litigation (JPMDL) transferred four talcum powder cases against Johnson & Johnson out of federal courts in Missouri and Pennslyvania and into the defense-friendly District of New Jersey.

In September 2016, Johnson & Johnson persuaded a New Jersey judge to throw out two women’s lawsuits blaming the health-care company’s talcum powder for their ovarian cancer.

J&J is using the ruling to fend off more than 3,100 suits in state and federal courts accusing the drug maker of ignoring studies that linked its talc products to ovarian cancer. Judge Nelson Johnson in Atlantic City ruled that the women couldn’t produce medical evidence showing J&J’s Baby Powder caused cancer.

In the New Jersey cases, J&J said testimony from experts hired by the women’s lawyers to outline links between talc and ovarian cancer suffered from “multiple deficiencies” and didn’t provide legitimate grounds for the suits.

“The court’s decision appropriately reflects the science and facts at issue in this litigation,” gloated Carol Goodrich, a J&J spokeswoman. “Science, research, clinical evidence and decades of studies by medical experts around the world continue to support the safety of cosmetic talc.”

Transfer to New Jersey

Plaintiffs in the federal Missouri actions had moved under Panel Rule 7.1 to vacate the JPMDL’s orders that conditionally transferred the actions to the District of New Jersey for inclusion in MDL No. 2738. Defendants Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc., and Imerys Talc America, Inc., successfully opposed the motions.

The four cases are:

Eastern District of Missouri

  • GHORMLEY, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 4:17-00585
  • KRUEGER, ET AL. v. JOHNSON & JOHNSON, INC., ET AL., C.A. No. 4:17-00839
  • HENSLEY, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 4:17-00972

Eastern District of Pennsylvania

  • MOORE, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 2:17-01164

The plaintiffs argued that federal subject matter jurisdiction was lacking, and that their motions to remand to state court were pending. “The JPMDL has held that jurisdictional issues generally do not present an impediment to transfer, as plaintiffs can present these arguments to the transferee judge,” the panel judges said.

Plaintiffs in the Moore action pending in the Eastern District of Pennsylvania also argued that transfer of Moore is not right because that action involves a differently named defendant than the other actions pending in the MDL and different applicable state law.

“Transfer under Section 1407 does not need a complete identity of factual issues or parties as a prerequisite to transfer when the actions arise from a common factual core. See In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., 201 F. Supp. 3d 1375, 1378 (J.P.M.L. 2016),” the JPMDL ruled.

“We find that these actions involve common questions of fact with the actions transferred to MDL No. 2738, and that transfer under 28 U.S.C. § 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.”

Fourth Mega-Verdict

The plaintiffs or their decedents developed ovarian or other gynecological cancer following perineal application of Johnson & Johnson’s talcum powder products (namely, Johnson’s Baby Powder and Shower to Shower body powder). See In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2738, __ F. Supp. 3d __, 2016 WL 5845997 (J.P.M.L. Oct. 4, 2016).

In May 2017 a Missouri state court jury awarded a $110 million verdict in a talc case against Johnson & Johnson. It was the fourth mega-verdict delivered against Johnson & Johnson, which has known about the ovarian cancer risks since the 1970s. In 2016 juries returned verdicts of $72 million, $70 million and $55 million against J&J in lawsuits filed by women with ovarian cancer.

The case was Lois Slemp v. Johnson & Johnson et al., case number 1422-CC09326-01, in the 22nd Judicial Circuit Court of Missouri before Judge Rex Burlison. More talc trials are set in St. Louis for July, with the first case in California, set to go to trial in July.

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JPMDL Centralizes Hernia Mesh Litigation in District of Georgia

Ethicon hernia mesh physiomesh
The lawsuits charge that the devices implanted in their bodies were defectively designed or manufactured, and that the defendants failed to give appropriate warnings and instructions.

The Judicial Panel on Multidistrict Litigation (JPMDL) created MDL 2782 to hear 70 hernia mesh actions pending against Johnson & Johnson and Ethicon, Inc. from 36 federal district courts before Judge Richard W. Story in the Northern District of Georgia.

The case is In Re: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation.

All of the actions share common factual questions arising out of allegations that defects in defendants’ Physiomesh hernia mesh can lead to complications when implanted in patients, including:

  • Herniation through the mesh.
  • Recurrent hernia formation and/or rupture.
  • Deformation of the mesh.

“Many plaintiffs more specifically allege that the multi-layer coating in Physiomesh prevented adequate incorporation of the mesh and caused or contributed to a variety of serious complications, and that the polypropylene mesh portion of the Physiomesh was insufficient to withstand normal abdominal forces,” the JPMDL said.

Panel rejects defense arguments

The defendants opposed creation of the MDL.

Ethicon argued that individual factual issues will predominate with respect to the wide variety of alleged injuries, causation, and the timing of each plaintiff’s injury as it relates to the warnings given with the product and the applicable statute of limitations.

“The Panel has rejected the argument that products liability actions must allege identical injuries to warrant centralization. See, e.g., In re: Cook Medical, Inc., IVC Filters Mktg., Sales Practices & Prods. Liab. Litig., 53 F. Supp. 3d 1379, 1381 (J.P.M.L. 2014). Indeed, “[t]hough these actions present individual issues of fact, this is usually true of products liability cases and medical device cases, in particular.” Id. at 1380 (citation omitted); see also In re: Wright Med. Tech., Inc., Conserve hip Implant Prods. Liab. Litig., 844 F. Supp. 2d 1371, 1372 (J.P.M.L. 2012) (“[A]lmost all injury litigation involves questions of causation that are case- and plaintiff-specific. Such differences have not been an impediment to centralization in the past.”).

As in other medical device cases centralized by the JPMDL, these actions “share paramount issues concerning the design, manufacture, testing, and marketing of a single medical device.” In re: Zimmer Durom Hip Cup Prods. Liab. Litig., 717 F. Supp. 2d 1376, 1378 (J.P.M.L. 2010).

On several occasions, the JPMDL has rejected the argument that it should deny centralization because creating an MDL would proliferate non-meritorious claims. See In re: Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006) (“The response to such concerns more properly inheres in assigning all related actions to one judge committed to disposing of spurious claims quickly.”); see also In re: Cook IVC Filters, 53 F. Supp. at 1381 (“the transferee court handling several cases in an MDL likely is in a better position—and certainly is in no worse position than courts in multiple districts handling individual cases—to properly address meritless claims”). Moreover, whether particular claims are without merit is a matter “more appropriately addressed to the court which oversees those claims.” In re: Seroquel, 447 F. Supp. 2d at 1378.

Unique 5-layer design

Physiomesh is a synthetic mesh hernia repair device is an implantable synthetic surgical mesh product sold for use in hernia repair implanted through laparoscopic herniorrhaphy.

Physiomesh has a unique design incorporating five distinct layers: two layers of polyglecaprone-25 (“Monocryl”) film covering two underlying layers of polydioxanone film (“PDS”), which in turn coat a polypropylene mesh. This design has never been used in any other hernia repair product sold anywhere in the world.

The multi-layer coating was promoted by the defendants to prevent or minimize adhesion and inflammation and to ease incorporation and fixation of the mesh into the abdomen. However, the plaintiffs intend to prove that the multi-layer coating instead prevented adequate incorporation of the mesh and caused or contributed to a variety of serious complications.

Additional surgeries needed

In addition, the polypropylene mesh part of the Physiomesh was insufficient to withstand normal abdominal forces, which often resulted in herniation through the mesh itself, recurrent hernia formation and/or rupture and deformation of the mesh itself. The defendants ultimately voluntarily withdrew the Physiomesh device from the market in May 2016, which the plaintiffs intend to prove was a direct result of the frequency and severity of the complications experienced with this product worldwide.

The plaintiffs’ attorneys include:

  • Henry G. Garrard, III, James B. Matthews and Josh B. Wages of  Blasingame, Burch, Garrard & Ashley, in Athens, GA.
  • Douglas A. Kreis, Bryan F. Aylstock, and Daniel Thornburgh D. Thornburgh of Aylstock, Witkin, Kreis & Overholtz in Pensacola, FL.
  • Donald A. Migliori of Motley Rice in Mount Pleasant, SC.
  • Jonathan D. Orent of Motley Rice LLC in Providence, RI.
  • Joseph A. Osborne of Osborne & Associates Law Firm in Boca Raton, FL.

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