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Use of Short Form Complaint -

Incorporating Certain Paragraphs of Long Form Complaint

     After speaking with Josh from the Complex Litigation section at the Philadelphia Court of Common Pleas I learned that the national liaison counsel of the MDL (multi-district litigation) are Attorneys Clayton Clark from Houston and Lee Balefsky here in Pennsylvania.

     I was told that you need not file a long form complaint, just a short form complaint with information personal to the client, and should state on that short form complaint that you are incorporating the long form complaint.

      By Order dated February 11, 2014, the Court of Common Pleas  created the In Re Pelvic Mesh Litigation mass tort program for the coordination of all cases in which a plaintiff alleged she suffered injuries as a result of the implantation of a pelvic mesh medical device. 

     A “Master Docket” was created to serve as a depository for the filing of pleadings, motions, orders, and other documents common to all pelvic mesh cases; once a document or order has been filed on the Master Docket, it could be incorporated by reference in any other properly filed Motion or Pleading. 

     A case management order also required the filing of a Master Long-Form Complaint which made allegations common to all plaintiffs in the litigation; the filing of the Master Long-Form Complaint superseded the pleadings in each individual case. Each individual plaintiff was then required to file a case-specific short-form complaint, which incorporated the Master Long-Form Complaint by reference and set forth the factual circumstances unique to that individual plaintiff.

     Within 25 days after the answer to the long form complaint, each plaintiff was to file a “short form” complaint on her Individual Docket identifying the counts of the long form complaint that she incorporated by reference and asserting any new facts or causes of action not in the long form complaint.

How it worked in the Hammons case:

     On May 14, 2014, the plaintiffs filed an eighteen-count long form complaint on the Master Docket against Ethicon and other defendants, including Secant Medical, Inc. and Secant Medical LLC (“Secant”), a manufacturer of surgical mesh located in Perkasie, Pennsylvania. Among the counts in the long form complaint were strict liability actions for design defect, manufacturing defect and failure to warn. The long form complaint also asserted that personal jurisdiction existed over Ethicon in Pennsylvania.

      On May 21, 2014, the plaintiffs served Ethicon with the long form complaint. On June 10, 2014, Ethicon filed preliminary objections to the long form complaint arguing that eleven of the eighteen counts failed to state a cause of action and objecting to the lack of specificity of certain averments. Ethicon did not file any objection to personal jurisdiction. Secant also filed preliminary objections seeking dismissal of the claims under the Biomedical Access Assurance Act, 21 U.S.C. § 1601 et seq. 

     On August 22, 2014, the trial court sustained Secant’s preliminary objections and dismissed all claims against Secant with prejudice. On September 2, 2014, the trial court overruled Ethicon’s preliminary objections. On September 23, 2014, Ethicon filed an answer to the long form complaint with new matter.

     On October 7, 2014, Hammons filed a short form complaint on her Individual Docket. On October 28, 2014, Ethicon filed preliminary objections to the short form complaint asserting lack of personal jurisdiction. 

     On November 6, 2014, the trial court entered an order on the Master Docket directing the parties to take discovery on the jurisdictional issue. 

     On March 30, 2015, the trial court overruled Ethicon’s motion on the Master Docket to dismiss for lack of personal jurisdiction and Ethicon’s preliminary objections on Hammons’ Individual Docket asserting lack of personal jurisdiction. The trial court did not provide any explanation for its ruling.

     On August 31, 2015, Ethicon moved for summary judgment on the Individual Docket. Among other arguments, Ethicon claimed that it was entitled to summary judgment on Hammons’ manufacturing defect claim because there was no evidence that the Prolift device used in her surgery deviated from its intended design. 

     On November 24, 2015, the trial court granted summary judgment to Ethicon on the manufacturing defect claim and other claims. The court left intact Hammons’ design defect and failure-to warn claims.

     The Court of Common Pleas concluded that Ethicon did not waive this issue, because the case management order for pelvic mesh cases did not require Ethicon to contest personal jurisdiction in preliminary objections to the Long Form Complaint.

     The case management order was a valid exercise of the court’s authority. In 1992, the Philadelphia Court of Common Pleas initiated the Mass Tort Program to deal efficiently with large numbers of complex but similar tort cases by coordinating and streamlining pleadings, discovery, pretrial motions, and trial. 

     The legal foundation for the Program is Pa.R.Civ.P. 213, which authorizes courts to consolidate related cases and issue case management orders for their efficient disposition. See Pa.R.Civ.P. 213(a) (“In actions pending in a county which involve a common question of law or fact . . . the court on its own motion . . . may order the actions consolidated and may make orders that avoid unnecessary cost or delay”).  

     The case management order in this case—which appears to be a standard order in all Philadelphia mass tort cases—fits well within the boundaries of Rule 213(a) by delineating applicable procedures in pelvic mesh cases.

     The case management order restricts preliminary objections to the Long Form Complaint to issues that apply to all pelvic mesh cases. The question whether the trial court had personal jurisdiction over Ethicon did not apply to all pelvic mesh cases.

      While a question of personal jurisdiction over Ethicon exists with regard to out-of-state plaintiffs such as Hammons, it appears fairly certain personal jurisdiction would exist over Ethicon in actions brought by plaintiffs who underwent Prolift surgery in Pennsylvania due to the “affiliation between the forum and the underlying activity.”

     Ethicon was not required to raise objections to personal jurisdiction in preliminary objections to the Long Form Complaint on the Master Docket. Indeed, as Ethicon observes, it was impossible for Ethicon to challenge personal jurisdiction in preliminary objections to the Long Form Complaint, because this complaint “lacked any of the plaintiff-specific allegations required to assert such objections—for example, the state where the plaintiff resides, the state where she had the device implanted, and the state where the injury occurred.

     When Hammons filed her short-form complaint that added those allegations Ethicon promptly and timely filed their preliminary objections to personal jurisdiction.”

     Apparently, even though in the Hammons case a long form complaint was filed and served in addition to the short form complaint (used also in the MDL federal litigation), that is no longer needed, all you need to do is file a short form complaint and incorporate the long form complaint by reference in the short form complaint.

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