Medical device company Ethicon, a subsidiary of Johnson & Johnson (JNJ, Financial), is hoping to expedite its appeal to the Pennsylvania Superior Court after losing its bid to reduce the pelvic mesh mass tort in Philadelphia.
The company recently filed a motion asking Judge Arnold New of the Philadelphia Court of Common Pleas to amend his order issued early in December. The order shot down Ethicon's efforts to throw out more than 100 cases from the pelvic mesh mass tort program. New tossed just one case from the 120-case mass tort program.
The only case to be removed from the program was Moore vs Ethicon (130701485).
"Mass torts are similar to class action lawsuits yet not exactly the same. In class action lawsuits, a single suit is filed on behalf of a group of 'similarly situated' plaintiffs," said Ankin Law Office LLC.
"Class action plaintiffs sign away their rights to individual lawsuits when they join the class. With mass torts, multiple similar cases are combined into a single trial, but each case is treated individually," he said.
That could mean more bad news for Ethicon's parent company Johnson & Johnson, which is still dealing with thousands of lawsuits related to its talcum powder.
In a motion filed Dec. 15, Ethicon asked New to add new language to the ruling that addressed a jurisdictional issue.
"The defendants respectfully request that the court amend its Dec. 4, 2017, order to state that a substantial issue of jurisdiction was presented so that an immediate appeal may be taken," Ethicon's lawyers said in the motion.
New was one of the first judges in Philadelphia to apply the Bristol-Myers Squibb v. Superior Court of California pronouncement. The ruling clarified that out-of-state plaintiffs cannot sue companies where the defendants are not considered "at home."
While the ruling has been labeled a "game changer," only four cases have been tossed from Philadelphia as a result of the decision. The city has long been regarded as a hub for pharmaceutical litigation.
In Ethicon's case, the jurisdictional dispute revolves around the relationship between the company and Secant, its biomaterial supplier in Bucks County. Secant manufactured the mesh used in nearly all of Ethicon's mesh products, with the exception of the Prolift +M. The mesh used in that particular product was produced by a non-Pennsylvania company.
Plaintiffs in the mass tort program argue that Secant's manufacturing role made Pennsylvania an appropriate venue, although its parent company Johnson & Johnson is based in New Jersey. Ethicon unsuccessfully downplayed its relationship with Secant and failed to prevent the plaintiffs from deposing a former company executive about the materials used to create the mesh products.
Testimony from the employee confirmed that Secant produced all of the mesh used in Ethicon's mesh products, with the exception of Prolift +M.
The outcome of Ethicon's appeal, whether or not the expedited appeal is granted, will ultimately affect Johnson & Johnson's stock. While some investors say 2018 will be a big year for the medical device company, the extensive string of lawsuits should be a concern for anyone thinking of buying stock in Johnson & Johnson.
Disclosure: Jacob Maslow does not have any stakes in the listed equities.
