Ethicon Sling Lawsuit Remanded to California State Court

On July 2, 2013, a California federal judge in the U.S. District Court for the Eastern District of California decided that a plaintiff’s physician was properly included as a defendant in an Ethicon sling lawsuit. The judge ruled that the case should be remanded to the state court where it was originally filed. The state court has the authority to decide if the physician was appropriately joined as a defendant and if the legal proceedings should be suspended until the Judicial Panel decides whether the case can be included in the transvaginal mesh multidistrict litigation.

Plaintiff alleges injuries from Ethicon sling implant

On April 11, 2013, Colleen Perry and her husband, Patrick Perry, filed a vaginal mesh lawsuit against manufacturer Ethicon and its parent company, Johnson & Johnson in the Superior Court of California, County of Kern. Colleen alleges that she was injured as a direct result of receiving the Ethicon sling system. The causes of action against the manufacturers are negligence, design defect, failure to warn, and negligent misrepresentation. The plaintiffs also listed Colleen’s physician, Dr. Hung T. Lu, as a defendant in the lawsuit and accused him of committing medical malpractice. The legal complaint states that Dr. Lu recommended Colleen use the Ethicon sling system even though he knew or should have known about the device’s high failure rate and the medical risks.

According to the court documents, Colleen received Ethicon’s Gynecare TVT Abbrevo sling implant on March 23, 2011. Colleen allegedly suffered severe and permanent injuries that were directly caused by the Ethicon sling system. Some of the transvaginal mesh complications Colleen sustained are discomfort, chronic pain, discharge problems, infection, odor, scarring, abnormal bleeding, and recurrence of stress urinary incontinence. Colleen was also unable to continue normal marital relations with her husband due to the complications.

The plaintiffs claim that Ethicon and Johnson & Johnson designed, manufactured, sold and distributed a defective medical product. The vaginal mesh manufacturers are accused of misrepresenting the safety and efficacy of the sling system. The Ethicon sling lawsuit states that the device is not reasonably safe for its intended use. The lawsuit also claims the manufacturers failed to provide adequate warnings to consumers regarding the risks associated with using the sling system.

Transvaginal mesh lawsuits and allegations

Ethicon’s bladder sling and vaginal mesh devices were marketed as effective treatments for stress urinary incontinence and pelvic organ prolapse (POP). After the manufacturers received FDA clearance to distribute the devices, thousands of adverse event reports stated patients suffered from medical complications. Some of the adverse side effects linked to the vaginal mesh and sling devices are infections, internal bleeding, vaginal scarring, organ perforation, and pain during sexual intercourse. Women who were seriously injured had to undergo revision surgeries and extensive medical treatment. In July 2011, the FDA issued a safety communication to inform the public that complications related to the use of the vaginal mesh or sling devices is not a rare occurrence.

Products liability lawsuits filed against Ethicon and other manufacturers have continued to accumulate throughout the nation. In order to effectively handle all of the transvaginal mesh lawsuits filed in federal courts, the Judicial Panel on Multidistrict Litigation decided to transfer the cases to the Southern District Court of West Virginia. In Re: Ethicon, Inc., Pelvic Repair System Products Litigation, MDL No. 2327 currently has more than 7,000 lawsuits pending.

Notice of removal filed by Ethicon and Johnson & Johnson

In the Perry case, Ethicon and Johnson & Johnson filed a notice of removal with the Judicial Panel. They requested to have the case litigated in the Southern District of West Virginia based on diversity jurisdiction. The defendants claimed that even though Dr. Lu is a California resident, his consent to remove the case wasn’t necessary since he was fraudulently misjoined in the lawsuit. The Judicial Panel conditionally transferred the case to the MDL No. 2327 in the West Virginia District Court since it involves questions of fact that are similar to the other lawsuits. The plaintiffs filed a motion opposing the transfer. The defendants sought to stop any further legal action until the Judicial Panel responded to the plaintiffs’ motion.

Magistrate Judge Jennifer L. Thurston of the California Eastern District Court ruled that the state court should make a decision regarding the defendants’ motion to suspend the legal proceedings. Judge Thurston also ruled that the state court has the jurisdiction to resolve the other substantive legal issues. The parties are currently waiting for a hearing with the Judicial Panel regarding plaintiffs’ opposition to transferring the case to the multidistrict litigation.