Vaginal Mesh Plaintiff Has Case Remanded to State Court

A lawsuit filed by a Kentucky woman alleging vaginal mesh complications was moved from state to federal court because one defendant named in the case was fraudulently joined.

The reason for the removal is that when federal lawsuits, such as the vaginal mesh lawsuits in the Southern District of West Virginia, are consolidated into a single court, a defendant residing in the same state as the plaintiff disqualifies the case from being heard in federal court. If the non-diverse defendant (for example, a medical group or the individual doctor) was fraudulently joined to the case, the transfer holds. A Kentucky judge, however, ruled that the case be remanded back to state court because the claims against the non-diverse defendants were found to be valid.

Consolidation is meant to save judicial time and resources and reduce the risk of inconsistent rulings.

Plaintiff received vaginal mesh to treat POP

In July 2007, the plaintiff had surgery to treat pelvic organ prolapse (POP). This condition results when pelvic muscles have been stretched or weakened post-surgery, due to aging, or having had a child. Symptoms of POP may include urinary problems or feeling pressure and pain in the area.

Doctor accused on not being properly trained in implanting vaginal mesh

The plaintiff was implanted with an Ethicon, Inc. manufactured plastic mesh netting. Ethicon is a subsidiary of Johnson & Johnson (J&J). This device was meant to assist in supporting the pelvic muscles and alleviate her symptoms. Following surgery, the plaintiff, through her vaginal mesh lawyer, alleges that she suffered from complications due to the vaginal mesh implant.

The plaintiff continued to suffer from discomfort and pain, but did not realize that her continuing problems could be because of the vaginal mesh device. It became clear on October 4, 2011, when she went to see a doctor to discuss her symptoms.

On December 9, 2011, the plaintiff underwent a second surgery in which the Ethicon TVT obturator mesh device was implanted.

The plaintiff had stated that the doctor was not properly trained in the general surgical techniques required to implant mesh devices and that this inexperience could have contributed or led to her injury. The plaintiff also stated that her doctor did not inform her of the possible issues that could develop when receiving vaginal mesh.

Defendants try to have case moved to federal court

An amended lawsuit against Ethicon, J&J, her doctor and his medical practice group was filed in March 2012. Ethicon and J&J had the case removed to federal court after claiming that the doctor and practice group—which were both located in Kentucky—were fraudulently joined into the case.

It was also argued by the defense that the one-year statute of limitations in Kentucky had barred the malpractice claims made by the plaintiff because she had received the device in 2007. According to their argument, the plaintiff should have been aware of the malpractice before she first filed the case in 2011.

Judge sends case back to state court

The Honorable Amul R. Thapar disagreed with the defendants’ motion and found that the plaintiff’s claims against the Kentucky defendants were valid. He also said that the time in which the plaintiff’s pain and suffering started is not the issue. The issue is when she realized that she had been injured. This, he ruled, is a question of fact to be determined by the jury.

As the plaintiff requested, the case returned to state court. Over 1,800 lawsuits have been filed and on January 10, 2013, the opening statements of the first case will be heard.