The plaintiffs in some 650 product liability lawsuits filed in an Oklahoma court over Ethicon’s pelvic mesh products are improperly looking to exclude them from mass action status, the Johnson & Johnson (NYSE:JNJ) subsidiary argued this week in a federal appeals court.
In a filing this week with the U.S. Court of Appeals for the 10th Circuit, Ethicon argued that the lawsuits ought to be tried as part of a multi-district litigation under the Class Action Fairness Act. The plaintiffs want the appeals panel to keep the cases in the Sooner State under Judge Timothy Leonard of the U.S. District Court for Western Oklahoma.
"Noting the conflict between the argument that the plaintiffs-appellees claims in each were misjoined, and that the argument that the separate lawsuits should be considered 1 mass action for purposes of CAFA; the district court declined to aggregate the claims to create federal CAFA jurisdiction," the plaintiffs argued, according to the documents, citing Leonard’s ruling that "if plaintiffs’ claims are in fact improperly joined under Oklahoma law, the proper course for defendants would have been to file a motion to sever in state court and then remove the diverse claims, if any."
Ethicon countered that the plaintiffs used a pair of tactics to slip CAFA jurisdiction: Dividing the 650 claims into 11 "virtually identical" petitions of less than 100 each; and including "at least 1 token New Jersey plaintiff" in each petition "in a transparent attempt to defeat federal diversity jurisdiction."
J&J said today that it’s facing an estimated 28,810 lawsuits over its pelvic mesh products, designed to treat female urinary incontinence and pelvic organ prolapse. It won 1 of those cases Feb. 18, when the judge overseeing an MDL in West Virginia dismissed the 1st bellwether lawsuit.
Johnson & Johnson is also facing product liability lawsuits and class actions in Australia, Belgium, Canada, England, Israel, Italy, the Netherlands, Scotland and Venezuela, according to a securities filing. And a Philadelphia court this week established its own mass tort for pelvic mesh cases filed against Ethicon and other medical device makers including C.R. Bard (NYSE:BCR) and Boston Scientific (NYSE:BSX).