Drinker Biddle attorneys seek to transfer pelvic mesh products liability suit from state to federal court

By Jon Campisi | Aug 27, 2013

Defense attorneys have petitioned the federal court in Philadelphia to

handle a products liability lawsuit initiated early last month by an Illinois plaintiff over allegations that she became injured by pelvic mesh.

A team of lawyers from Drinker Biddle & Reath filed a notice of removal with the Eastern District of Pennsylvania seeking to have the federal bench take jurisdiction over a lawsuit filed on July 2 at the Philadelphia Court of Common Pleas by counsel for Carla Hibler, an Illinois resident who claims she was injured soon after having a pelvic repair mesh product implanted in her body in early January 2010.

The lawsuit claims that the defendants’ mesh products and/or mesh components can erode and cause infection, inflammation, organ perforation, pelvic floor damage, blood loss, recurrent urinary incontinence and other problems in patients who have the product surgically implanted in their bodies.

Hibler claims she sustained severe and permanent pain, suffering, disability, impairment, loss of life’s enjoyment, and other problems as a result of having had the pelvic mesh product placed inside her body.

Records show that the pelvic mesh product that had been placed inside the plaintiff was the Gynecare TVT System manufactured by Ethicon Inc., which is named as a defendant in the litigation along with Ethicon Women’s Health & Urology, Gynecare, Johnson & Johnson, Prodesco Inc. and Secant Medical Inc.

The notice of removal, which was filed on Aug. 23 at U.S. District Court by lawyers Kenneth A. Murphy, Melissa A. Graff and Andrew P. Reeve, says that the matter should be litigated inside a federal courtroom because the amount of damages sought by the plaintiff appears to exceed $75,000, the threshold for removal to U.S. District Court.

The defense lawyers wrote that the Hibler case is factually similar to thousands of cases currently pending in six separate multidistrict litigation proceedings playing out against the defendants over pelvic mesh injury allegations.

The attorneys representing the defendants also wrote that complete diversity of citizenship exists between the parties, another requirement that must be shown before an action is transferred out of state court and into a federal venue.

The removal petition also notes that Gynecare Inc. no longer exists, having since been acquired by Ethicon Inc.

Johnson & Johnson, the notice states, is a citizen of New Jersey that has its primary place of business in the Garden State.

The removal petition further maintains that Secant’s presence in the litigation doesn’t defeat diversity jurisdiction because the company was fraudulently joined to the case.

Secant, the defense attorneys wrote, has played an extremely limited role in the development of the Gynecare TVT System, and therefore should not be named in the lawsuit.

The company has never designed, marketed, promoted, sold, packaged or distributed the product, and it has never conducted pre-clinical testing or clinical trials on TVT, it never submitted applications to regulatory agencies to permit the marketing of TVT, and it never developed or published the package inserts, labels or other materials associated with the pelvic mesh system, the lawyers wrote.

“Accordingly, Secant cannot be held liable under the Biomaterials Access Assurance Act of 1998 and, in the alternative, on the substantive merits of the claims brought by Plaintiffs,” the petition reads.

The plaintiff is being represented by Thomas R. Kline, Lee B. Balefsky and Michelle L. Tiger, of the Philadelphia firm Kline & Specter.

Hibler is asserting claims of strict liability, negligence, common law fraud, negligent misrepresentation, negligent infliction of emotional distress, breach of warranty, gross negligence, and violation of consumer protection laws.

The federal case number is 2:13-cv-04932-TON. 

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