Pa. Supreme Court set to consider jurisdiction questions in pelvic mesh litigation

By Nicholas Malfitano | Apr 18, 2019

Ethicon, Inc.  

HARRISBURG – Pelvic mesh litigation in Philadelphia may now be greatly affected by the Supreme Court of Pennsylvania’s choice to examine a landmark U.S. Supreme Court decision pivotal to the issue of jurisdiction.

On April 10, the Supreme Court of Pennsylvania issued a single page-order to approve an appeal from Ethicon, Inc., a manufacturer of pelvic mesh and a subsidiary of Johnson & Johnson, from a prior decision reached in the Superior Court of Pennsylvania, though only limited to a single point of consideration:

“Whether the due process clause of the Fourteenth Amendment to the United States Constitution and 42 Pa.C.S. Section 5322(c) precludes Pennsylvania from asserting personal jurisdiction over two New Jersey companies in a case brought by an Indiana resident asserting claims under the Indiana Product Liability Act.”

The ruling ties into the pelvic mesh personal injury litigation brought by Indiana-based plaintiff Patricia Hammons against Ethicon, which is based in New Jersey.

Hammons suffered a prolapsed bladder in 2009 and to treat her condition, she had a Prolift-brand mesh device surgically implanted. According to the plaintiff, the mesh’s density led to the build-up and movement of scar tissue, causing erosion to Hammons’ bladder, terrible pain and numerous other symptoms.

The mesh device ultimately failed. As a result, surgeries were necessary to remove the device. However, Hammons claimed that pieces of the device attached themselves to what remained of her bladder and were unable to be extracted.

A Philadelphia jury first awarded Hammons $5.5 million in compensatory damages, and later, punitive damages of $7 million against Ethicon in December 2015. Delay damages in the case were later approved through judicial order.

Ethicon appealed the verdict to the Superior Court of Pennsylvania, alleging among other things, that Hammons failed to state a claim, failed to do so in a timely fashion and that a punitive damages award should have been disallowed.

In June of last year, the Superior Court shot down Ethicon’s appeal and upheld the $12.85 million jury verdict reached in the trial court in an 82-page ruling.

Stabile referred to the U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California when he ruled on behalf of the Superior Court that the connection between Ethicon and Pennsylvania was “considerably stronger” than the one between Bristol-Myers Squibb and the state of California.

In Bristol-Myers Squibb, the U.S. Supreme Court ruled in 2017 that out-of-state plaintiffs are not permitted to bring litigation against companies in venues where the defendants aren’t based or headquartered, or where they have not conducted business relevant to the cause of action.

Furthermore, Stabile spoke of a strong tie between Ethicon and Secant Medical, based in Pennsylvania, to create the pelvic mesh at issue.

“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,” Stabile stated.

“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.”

Now, Pennsylvania's highest court will consider how jurisdiction factors into the Hammons case.

Almost 100 similar cases to that of Hammons are currently being contested in the Philadelphia County Court of Common Pleas, and its mass tort program in the Complex Litigation Center.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Philadelphia County Court of Common Pleas Superior Court of Pennsylvania

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