Boston Scientific Pelvic Mesh Cases Removed From Philadelphia Court of Common Pleas Based on SCOTUS “Plavix” Ruling

Boston Scientific Mass Tort Mesh Cases Removed From Philadelphia Court of Common Pleas Based On Recent Supreme Court  June 2017, Bristol Myers vs. California Superior Court “Plavix” Ruling

 

 

 

 

 

 

Boston Scientific, Marlborough, MA

By Mark A. York (September 7, 2017)

Plaintiffs who filed suit against Boston Scientific in a Philadelphia court over allegedly defective pelvic mesh, have agreed to have their cases removed from the Pennsylvania Court to other venues based on the June 2017 “Bristol-Myers California Plavix” U.S. Supreme Court opinion.  The Plavix ruling has thrown thousands of non-resident drug and medical device state court cases across the country into turmoil, as the non-resident plaintiffs cannot continue their cases in state courts where they do not reside or the defendant companies are not corporate residents.  This was based on the Supreme Court ruling that stated Bristol-Myers R&D and sales activity in the State of California related to it’s Plavix blood thinner, (see Mass Tort Nexus “Plavix” CA State Court Briefcase) was not enough of a corporate presence to subject them to California state court jurisdiction, resulting in jurisdictional issue across the country for plaintiff firms.

Last month, Boston Scientific filed motions asking the court to remove any cases pending against it in the Philadelphia Court of Common Pleas, citing the Supreme Court’s both the “Bristol-Myers Squibb v. Superior Court of California”, see US Supreme Court Strikes Down State Court Jurisdiction and “BNSF Railway v. Tyrrell”, see SCOTUS Limits What State Court A Corporate Defendant Can Be Sued In.

According to one of the lead attorneys, the parties have agreed to litigate the cases in either Massachusetts, where Boston Scientific has its principal place of business, or in Delaware, it’s state of incorporation.

Kline & Specter attorney Shanin Specter said. “An agreement was reached with Boston Scientific to have the cases heard in a courtroom other than the Philadelphia Court of Common Pleas, so the cases can move forward and litigate without the jurisdictional issue creating legal issues. Although Boston Scientific’s motion last month sought to remove 94 cases, Specter said only three cases had been moving forward against Boston Scientific with calls placed to Boston Scientific defense counsel Shook, Hardy & Bacon and attorney Joseph Blum seeking comment have not been returned.

Judge New Asked to Reconsider

Last month, Boston Scientific had filed a motion requesting Philadelphia Court of Common Pleas Judge Arnold New reconsider his March 2015 decision that the state court had jurisdiction over the mesh cases.  New, who is the supervising judge of Philadelphia’s Complex Litigation Center, issued a one-page order saying Boston Scientific’s motion was moot.

As part of the motion, Boston Scientific had sought to have New’s 2015 ruling vacated to allow for additional arguments on the issue, and allowing defense counsel to begin pleading the removal of thousands of other non-resident plaintiff cases currently in in the court’s complex litigation docket.

Ethicon Mesh Motion for Removal

Another major defendant in over one thousand pelvic mesh mass cases , Johnson & Johnson subsidiary Ethicon, has also filed motions recently seeking to have the cases dismissed based the Supreme Court’s recent decisions. Plaintiffs, however, have requested Judge New pend any rulings on these issues, based on the Pennsylvania Superior Court has agreed to consider the matter in a case that is pending before the intermediate court on appeal.

The Supreme Court’s ruling from June 19, 2017 in Bristol-Myers vs. Superior Court of California (see US Supreme Court Denies California State Court Jurisdiction) now seen as the defining game-changing decision, for mass torts in state courts, that has promised to reshape the geography of mass tort litigation across the country. In the ruling, a majority of the Supreme Court determined that plaintiffs suing Bristol-Myers Squibb in California who were not California residents had failed to establish specific jurisdiction over the pharmaceutical giant, since there was no significant link between the claims and Bristol-Myers’ conduct in California. The ruling, according to observers, makes clear that out-of-state plaintiffs can’t sue companies in states where the defendants aren’t considered to be “at home,” or haven’t conducted business directly linked to the claimed injury.

Johnson & Johnson Files For Missouri Removals

Earlier this month, J&J filed a motion in Missouri seeking to dismiss more than 1,300 lawsuits against it over talcum powder, claiming the lawyers had engaged in “blatant forum shopping on a grand scale.” On June 19, 2017 St Louis City Court Judge Rex Burlison declared a mistrial in the fifth talcum powder cancer trial being heard there, which was the afternoon of the SCOTUS “Plavix” ruling, declaring that the opinion earlier that day prevented the trial from moving forward. The trial was reset for October 2017, and the parties are currently arguing the jurisdictional issues of resuming the trial in front of Judge Burlison, see Mistrial Declared in J&J Talc Trial Due to SCOTUS Ruling.

Boston Scientific Argument

In requesting reconsideration regarding the recent Supreme Court decisions, Boston Scientific contends that Pennsylvania state courts no longer have jurisdiction over it. Specifically, the motion said Boston Scientific is a Delaware corporation with its principal place of business in Massachusetts, it does not have sufficient ties to Pennsylvania to render it “at home” in the state, and the plaintiffs are not Pennsylvania residents. The company further says that finding Pennsylvania has jurisdiction simply because the company complies with the state’s business registration statute violates the due process clause of the U.S. Constitution and the now precedent “California Plavix” decision, .

“It is undisputed that Boston Scientific’s principal place of business is Massachusetts while its place of incorporation is Delaware,” the motion said. “Those are the only two jurisdictions where Boston Scientific is so heavily engaged in activity as to render it ‘at home.”

State Court Removal and Refiling Across The Country

The Philadelphia Court of Common Please Complex Litigation Docket appears to be preparing for a departure of many of the thousands of product liability cases, which prior to June 19, 2017 were moving along quite well in the under the direction of Judge Arnold New. State court dockets across the country are now forced to consider the removal of many cases as well as the potential refiling of thousands of cases in the state of incorporation for the medical device and pharmaceutical manufacturers.

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“New Evidence of Johnson & Johnson Bad Conduct Moved LA Jury to Award $417 Million Talc Verdict”

Johnson & Johnson Still Influencing Opinion by Paying Cash to Insiders in Talc Cancer Fight

New Evidence of J&J Bad Conduct Moved LA Jury to Award $417 Million Talc Verdict”

 

 

 

 

 

 

 

 

Why did California jurors enter a verdict in favor of a cancer stricken plaintiff last week for $417 million in the latest trial over Johnson & Johnson’s (J&J) talcum powder and links to ovarian cancer?(see J&J Loses Another Talc Cancer Trial) It seems as if the largest talc cancer trial verdict to date, may have been influenced by new evidence, including an emailed photo that arrived at the start of trial, apparent payments to science industry insiders and a key J&J witness who was sanctioned and discredited for false testimony at a trial in North Carolina, according to one of plaintiffs’ counsel in the case.

The jury, in front of Judge Maren Nelson, Los Angeles Superior Court, (Eva Echeverria vs. Johnson & Johnson, Case No. BC628228), awarded Ms. Echeverria $70 million in non-economic damages and $347 million in punitive damages after finding that Johnson & Johnson failed to warn that its baby powder could cause ovarian cancer. Eva Echeverria was diagnosed with ovarian cancer in 2007, and was unable to testify at trial due to her illness.

Thousands of women have brought lawsuits making similar claims, most of which are in California, Missouri and New Jersey. Plaintiffs’ attorney Allen Smith, of The Smith Law Firm, who has tried all six of the previous trials, five of which were in Missouri. A seventh Missouri trial never went to a jury after the judge granted a mistrial, (see J&J Talc Trial Mistrial Declared After SCOTUS Ruling,)  on the day of the California-Plavix state court jurisdictional opinion. The juries hearing cases linking talcum powder to cancer have awarded four prior plaintiffs’ verdicts, totaling over $300 million, with the highest previous verdict being $110 million and all were awarded in Missouri state courts.

Introduction Of Damaging Evidence Against J&J:

Competitor Warning Labels

The California jury award was tied to three new pieces of evidence that other jurors hadn’t heard before, including evidence that baby powder products made by other companies sold at Walmart and Dollar Tree had warnings on the bottles showing the risks of ovarian cancer. Plaintiffs’ lawyers found out about the labels after a client of Ted Meadows, a partner at Beasley, Allen, et al, in Montgomery, AL, one of the trial attorneys, emailed a photo of a product with a warning label to them just before the Los Angeles trial began. “That was very welcome news to us,” Meadows said. “And the way it played out during the trial, I think it was news to J&J.”

Payments To Industry Insiders

Introduction of evidence that two individuals involved in the Cosmetic Industry Review (CIR), which has deemed talcum powder to be safe, which is data J&J has relied on in prior trials, had received payments from Johnson & Johnson for speeches and other engagements. This damaging information was discovered while cross-examining the group’s former director, Alan Andersen, who was a defense witness, and he was forced to disclose the prior unknown financial relationship of the CIR and Johnson & Johnson.

Bad Science

A major blow to J&J’s defense came when a defense witness, Senior Johnson & Johnson epidemiologist, Dr. Douglas Weed, was revealed to have been sanctioned for perjury in another trial in North Carolina, for lying under oath about whether he retained notes to his expert report, which plaintiffs attorneys were able to show.

“J&J presented these unbelievable and non-credible witnesses on an issue that is very important to our case,” Smith said. “Attempts to influence witnesses and alter facts, along with the fact other companies are warning of the cancer link and have been warning for eight to 12 months now. This was new evidence that proved very compelling to the jury as well as a reflection of J&J’s willingness to manipulate the trial process in their favor”, leading many to wonder what else J&J may have done.

In a post trial statement J&J declined to address the specifics of the case, stating: “We will appeal today’s verdict because we are guided by the science, which supports the safety of Johnson’s baby powder. In April, the National Cancer Institute’s Physician Data Query Editorial Board wrote, ‘The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.’ We are preparing for additional trials in the U.S. and we will continue to defend the safety of Johnson’s baby powder.”

In response, the Plaintiff team stated “The new evidence that came into the California case could play a role in the next talcum powder trial, which is set for Oct. 16 in Missouri, we certainly think it is evidence that should be presented, and we’ll make every attempt to do so,” Ted Meadows said.

Johnson & Johnson Has Thousands More Talc Trials Waiting

J&J faces thousands more federal lawsuits in the recently consolidated MDL 2738, In Re: Johnson & Johnson Talcum Powder Products Liability Litigation supervised by US District Judge Freda L. Wolfson in the US District Court of New Jersey, in addition, there are the ever growing number of state court cases pending in Pennsylvania, New Jersey and Delaware as well as the remaining thousands of cases in the California State Court consolidation, which are captioned Johnson & Johnson Talcum Powder, Case No. JCCP4872.

Evidence of Johnson & Johnson and misconduct both inside and outside the courtroom can do nothing to further prove their continued claims of “no connection between ovarian cancer and use of J&J talcum powder products”, except provide juries with information which will continue to cause massive plaintiff verdicts to be entered across the country as more damaging evidence against J&J comes to light and is introduced at trials.

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Johnson & Johnson Loses Again In First California Talc-Cancer Trial As Jury Awards Plaintiff $417 million

J&J’s Loses Again In First California Talc-Cancer Trial As Jury Award Plaintiffs $417 million

  • Los Angeles jurors decide Johnson & Johnson failed to warn about risks
  • The Eva Echeverria trial is first of 300 cases in California alleging ovarian cancer

“Eva Echeverria v. Johnson & Johnson, number BC628228, in the Superior Court of California for Los Angeles County”

Johnson & Johnson (J&J) found out earlier today, August 21, 2017 that California is no friendlier than Missouri when fighting allegations that its talc powder causes ovarian cancer in women, as a Los Angeles Superior Court awards plaintiff Eva Echeverria $417 million after 3 days of deliberations.

J&J has lost four out of five recent talc cases that went to trial in St. Louis, and is the first trial before a jury in Los Angeles, and is the first case to go to a state-court jury outside Missouri and one of more than 300 similar cases pending in California. This trial follows the US Supreme Court ruling in June 2017 that made it harder for mass tort lawyers to try cases in St. Louis and other cities that have been a destination of choice for litigation against companies that do business nationwide.

The jury verdict shows that J&J is liable for failing to warn Eva Echeverria, 62, about the alleged cancer risks of using its talcum products, which she started using when was 11. She was diagnosed with ovarian cancer in 2007. The Monday morning verdict followed last Wednesday’s closing arguments, with the California jury deliberations coinciding with J&J’s jury trial in the Xarelto blood thinner Mississippi federal trial, which resulted in a defense verdict for J&J on August 18, 2017.  J&J was hoping the Mississippi Xarelto jury verdict was a precursor to the California Talc verdict, which it was not. Ms. Echeverria’s case was chosen as the first bellwether trial due to the onset of final stage ovarian cancer and her failing health, with doubts in some circles that she may not have survived until the trial start.

There are more than 4,800  Talc claims in federal and state U.S. courts accusing J&J, the world’s largest health-care company, of ignoring studies linking its baby powder and Shower to Shower talc products to ovarian cancer and failing to warn customers about the risk, with cases pending in Missouri, New Jersey and California.

In June, the Missouri judge halted the Talc trial there mid-trial in St. Louis, following a U.S. Supreme Court decision, earlier in the day limiting out-of-state plaintiffs joining lawsuits in state court, in the Bristol-Myers (Plavix) state court jurisdictional ruling, Bristol Myers California Plavix Ruling.  Up to then, J&J had been hit with verdicts as high as $110 million by Missouri juries, a favored location for Talc litigation, totaling more than $300 million and J&J, a New Brunswick, New Jersey-based company is appealing these verdicts.

J&J claims the plaintiffs’ allegations aren’t supported by scientific evidence, pointing to a New Jersey state court decision last year tossing out two cases set for trial, due to lack of expert witness supporting evidence.  That judge found evidence linking talc to ovarian cancer was inadequate, however, J&J just happens to be a New jersey based corporation.

The case is Eva Echeverria v. Johnson & Johnson, BC628228, Los Angeles County Superior Court.

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J&J Talcum Powder Cancer Trial Update: California State Court Jury Hears from Plaintiff Eva Echeverria’s Epidemiology Expert

“Plaintiff Eva Evecherria’s Case Selected For First Trial Due to Onset of End Stage Terminal Ovarian Cancer”

Is Johnson & Johnson Baby Powder Dangerous?

Plaintiff Eva Echeverria, whose case was selected for California’s bellwether trial, due to her declining health caused by ovarian cancer, continued to present evidence last week in Los Angeles Superior Court. (see Eva Echeverria vs J&J Talc Trial CA State Court ), and there are additional cases against J&J in Johnson & Johnson Talcum Powder Cases, No. JCCP4872.

On Friday, jurors heard from a Canadian epidemiology expert who was called to offer his opinions on studies linking talc-based powders to ovarian cancer.

Among other things, Jack Siemiatycki, an epidemiologist with the University of Montreal and McGill University, discussed his contributions to the International Agency for Research on Cancer’s 2006 monograph that deemed talc a possible human carcinogen. According to Law360.com, he also testified that his stance has changed since then, as he now thinks that it is more likely than not that talc can cause ovarian cancer.

Under cross examination, Siemiatycki acknowledged that he had not reviewed the plaintiff’s specific case, as his testimony was only intended to address the general link between use of talcum powder and ovarian cancer .

Johnson & Johnson Concerns Are Corporate Image Over Human Life

The talcum powder lawsuit selected for the California trial was filed on behalf of Ms. Echeverria, a 63-year-old woman who allegedly made Johnson & Johnson’s talc-based powders a regular part of her daily feminine hygiene routine in the decades prior to her ovarian cancer diagnosis. Like other plaintiffs around the country, she claims that tiny particles of talc entered her vagina and migrated to her ovaries, resulting in the type of inflammation that encourages the growth of ovarian cancer cells.

During opening statements earlier in the week, Escheverria’s attorney asserted that Johnson & Johnson had known of the alleged link between talc and ovarian cancer for decades, but decided to withhold warnings from the public to protect its image.

“It’s the safe and gentle corporate image of a mother and baby that the defendants are placing over human life, in this case,” he told the jury.

Delaware State Court Plaintiffs Request Coordination

10 plaintiffs who filed talcum powder lawsuits in Delaware Superior Court are seeing coordination of all ovarian cancer cases involving Johnson & Johnson products. In addition to Johnson & Johnson, Imerys Talc America Inc., and the Personal Care Products Council are named as defendants.

Talcum Powder Ovarian Cancer Cases Filed in Canada

In May 2016, a class action lawsuit was filed in Toronto, Ontario on behalf of Canadian women who allegedly developed ovarian cancer due to their long-term use of Johnson & Johnson’s baby powder for feminine hygiene. Plaintiffs assert that the company should have warned consumers decades ago about the alleged link between talc powder and ovarian cancer, and that doing so would have easily prevented many, many cases of the disease.

Missouri Talcum Powder Plaintiff Verdicts

Johnson & Johnson has been named a defendant in more than 3,000 talcum powder claims in state and federal courts throughout the country. In addition to California, similar litigation is currently underway in Missouri, New Jersey and Delaware state courts, as well as New Jersey Federal Court.

The Missouri litigation, has already resulted in 6 talcum powder trials, with plaintiffs winning 4, one defense verdict and the most recent June 2017 trial declared a mistrial due to a US Supreme Court ruling. The first concluded in February 2016, when the family of an Alabama woman who died of the disease was awarded $72 million ($10 million compensatory and $62 million punitive).

Three months later, Johnson & Johnson was ordered to pay $55 million ($5 million compensatory, $50 million punitive) to a South Dakota ovarian cancer victim.

The following October, another Missouri jury awarded $70 million, including $2.5 million in compensatory damages and $67.5 million in punitive damages, to a third plaintiff.

Missouri’s fourth talcum powder trial concluded in March 2017, with a win for Johnson & Johnson. In May, however, the company was hit with its largest talcum powder verdict thus far, when another Missouri jury awarded more than $100 million in compensatory and punitive damages to the plaintiff in the state’s fifth trial. The final trial in June, where Shawn Blaes and other non-Missouri plaintiffs were in mid-trial when Judge Burlison declared a mistrial just hours after the US Supreme Court ruled on the state versus federal court jurisdictional issue in Bristol-Myers vs. California Supreme Court.

How will the Bristol-Myers “California-Plavix” Ruling Affect Missouri and Other State Court J&J Talcum Powder Cases?

On June 19, 2017 in the most recent St. Louis courtroom trial, Estate of Shawn Blaes, et al vs. Johnson & Johnson Case No. 1422-CC09326-01, over Johnson & Johnson’s talcum powder, trial counsel received notice of a US Supreme Court decision that day and were changing trial strategy instantly, and scrambling to determine if the Supreme Court decision handed down that morning doomed their case. The ruling was from a California multi-plaintiff drug case, Bristol Myers-Plavix Litigation JCCP Case No. 4748 (San Francisco County Superior Court) where Bristol-Myers had appealed the August 29, 2016 California Supreme Court decision, where the California court ruled that “foreign resident plaintiffs were able to remain parties to the Plavix litigation in California State Court” see California Court Opinion Jurisdiction of Non-Resident Plavix Plaintiffs 8.29.2016. Bristol-Myers immediately appealed to the US Supreme Court, where appeal arguments were heard on April 24, 2017, see BMSQ California Plavix SCOTUS Appeal Transcript , which left non-resident plaintiffs in state court cases across the country in limbo, pending the ruling.  On June 19th the US Supreme Court in an 8-1 ruling clarified the non-resident question for many plaintiffs, including the three plaintiffs in the pending trial in front of Judge Rex Burlison, who immediately declared a mistrial. The Blaes trial has been reset for October 2017, pending motions and briefings regarding the Plavix ruling and how it applies to the trial.

There are already dismissals in federal and state court cases of non-resident plaintiffs in non-talc lawsuits, so what will the “California-Plavix” ruling do to the thousands of other talc cases pending across the country? That question remains to be answered.

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