How an out of state Plaintiff obtains jurisdiction over Johnson and Johnson and Ethicon in the Philadelphia Court of Common Pleas
Secant is a company in Pennsylvania that manufactures the mesh that goes into certain mesh devices that are sold by Johnson & Johnson and its subsidiary Ethicon.
When Secant was dismissed from the pelvic mesh cases I was told that the docket of cases based in Philadelphia that were being handled by the Houston based law firm of Clark, Love & Hutson (Clayton Clark's law firm) disappeared when Defense counsel moved to remove the cases from State Court in Pennsylvania to the MDL (multi-district litigation) in Federal Court.
If the case does not settle as part of the MDL process, the case gets transferred for trial to the State where the mesh was implanted. The implant location controls, not where the Plaintiff resides or resided at the time the mesh was implanted in her.
However, the Court in the Hammons case found a sufficient nexus with Pennsylvania to have the case tried there where the implanted mesh device was the Prolift.
The connection between Ethicon and Pennsylvania is considerably stronger than the connection between Bristol-Myers and California.
Ethicon supervised the design and manufacturing process of pelvic mesh in Pennsylvania in collaboration with Secant Medical, Inc., a Bucks County company. Ethicon also worked closely with an Allentown, Pennsylvania physician, Vincent Lucente, M.D., in developing Prolift.
Both of these factors support the exercise of specific jurisdiction over Ethicon in Pennsylvania.
Hammons claims that she suffered bodily injuries due to the properties of the mesh that Ethicon used in its transvaginal mesh product, Prolift. She contends that Ethicon defectively designed and manufactured the mesh with polypropylene material that was toxic, dense and inelastic. Because of its defective design, she asserts, the mesh caused scar plating, erosion of mesh into her pelvic organs, and extensive personal injuries.
The record illustrates that Ethicon worked together with Secant in Pennsylvania to design, test and manufacture the Prolift mesh.
Three high-level officials of Secant provided affidavits that Ethicon provided all material specifications for the weaving of mesh at Secant’s Pennsylvania plant, including specifications concerning the mesh’s elasticity, mass, and density, the specifications at the center of Hammons’ claims.
Ethicon delivered polypropylene filament to Secant in Pennsylvania. Secant knitted the filament into large rolls of mesh in, and tested samples for, compliance with Ethicon’s specifications.
Ethicon received the rolls of mesh from Pennsylvania and processed them further. Emails between Ethicon and Secant officials demonstrate that Ethicon repeatedly communicated its requirements for mesh design and development, manufacturing, quality control, testing, and certification to Secant—all issues central to this litigation.
The emails also show that Ethicon employees visited Secant’s plant in Pennsylvania on multiple occasions to observe the mesh production process. This evidence establishes an affiliation between Pennsylvania and Hammons’ cause of action against Ethicon for defective design of the Prolift device. Bristol-Myers, 137 S.Ct. at 1781.
Trial evidence shows that Ethicon relied heavily on an Allentown, Pennsylvania gynecologist, Vincent Lucente, M.D., for the development, study, and marketing of Prolift.
Ethicon retained Dr. Lucente as its investigator for three important clinical studies that Ethicon funded concerning the outcomes and safety of Prolift mesh: the Gynemesh PS study of Prolift’s mesh materials, the US TVM study of the Prolift prototype, and the Lucente IIS study.
Dr. Lucente’s role was so important to Ethicon’s development of Prolift that Ethicon employees traveled to Pennsylvania in February 2006 to meet with Dr. Lucente for guidance concerning the marketing and development strategy for Prolift.
At Ethicon’s behest, Dr. Lucente interceded on Ethicon’s behalf to persuade the American College of Obstetricians and Gynecologists to remove a designation of these mesh procedures as “experimental.”
Ethicon paid Dr. Lucente over $1.7 million for his services in Pennsylvania.
For these reasons, the trial court denied Ethicon’s motion to dismiss this action for lack of personal jurisdiction.
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