Transvaginal mesh is one of the great health debacles of our time, causing more damage across more families than any other medical device in recent memory. I know it from my own files: the mesh implants ruin women’s health, often sending them down a spiral of revision surgeries and infections and debilitating pain that they never really escape.
Last April, the FDA finally started taking action to address the problem by proposing that surgical mesh for transvaginal pelvic organ prolapse be reclassified from a “moderate-risk device (class II)” to a “high-risk device (class III),” which would require manufacturers to submit a premarket approval application to the FDA before selling the meshes. (Way back in 2011, I noted that the “class II” status played a central role in allowing the transvaginal mesh debacle to occur.) If we’re lucky, within the next year they will be off the market or limited to use in women who can’t use safer treatment options.
The transvaginal mesh litigation, in turn, continues to grow, so that now the federal multi-district litigation in West Virginia now has more than 65,000 open cases. The jury trials of these cases have not gone well for the manufacturers: even their hand-picked “bellwether” cases have typically resulted in large verdicts for plaintiffs. Some of the mesh manufacturers have come to their senses and have started limited settlement processes with groups of firms. None of the manufacturers have utilized the same global claims process that worked well in Vioxx and the DePuy ASR litigation, but it’s progress, at least.
And then there’s Ethicon, a division of Johnson & Johnson. They seem content with a “gates of hell” approach, refusing to even consider settlement until they have exhausted every last legal process available to them.
The latest ploy by Ethicon starts with this argument: “Women across the nation are receiving unsolicited phone calls from strangers who are seeking — or, more disturbingly, already know — their very personal medical information. These individuals, who are on some occasions may call as often as 50 times a month, try to entice each woman into filing a lawsuit, oftentimes disregarding whether she has an injury or even had a mesh implant at all.” Motion, p. 3. I wouldn’t be surprised if that’s happening. If it is, it is unethical, illegal, and should be prosecuted to the full extent of the law. Johnson & Johnson should take on these companies and start suing the bejesus out of them.
Importantly, though, several pages later in the motion, Ethicon admits: “Johnson & Johnson and Ethicon do not suggest that any specific plaintiffs’ counsel involved in this MDL is knowingly participating in this scheme. In fact, it appears that the callers on occasion may be coaching women about what to say to lawyers.” Motion, p. 9. Indeed. To those of us who work on behalf of plaintiffs, these companies are scoundrels. If Johnson & Johnson would devote even one-hundredth of the energy towards those companies’ destruction as it puts into denying injured women compensation, the calls would disappear.
But that’s not what Johnson & Johnson and Ethicon have in mind. I suspect that they like these companies for the cover these companies give them to do what they really want: put more burdens on women with meritorious claims. Their motion doesn’t even ask for any remedies actually related to the telemarketing. Instead, they ask for “mechanisms to cull the docket.” Motion, p. 15. In other words, Johnson & Johnson and Ethicon are accusing all 20,000+ plaintiffs in the Ethicon MDL of being outright liars who should be held to a far higher burden of proof at the very beginning of their case than any other plaintiff is held, as if women in general can’t be trusted to give information about their own bodies.
Long ago, the MDL court ordered that transvaginal mesh plaintiffs start their case with detailed evidence about their mesh and their injuries. As I recounted last year, when discussing how the TVM cases could be brought to resolution by remanding them and moving them swiftly towards trial:
the MDL’s pretrial orders require every plaintiff to swiftly serve on the defendants information from their medical records specifically identifying the implanted product in question. Then, within two months after filing and serving the complaint, the plaintiff also has to serve a detailed plaintiff profile form (as an example, here’s the Ethicon form) that identifies, among other issues, all the symptoms they’ve had, and whether or not they had the mesh revised or removed — and, if so, they have to identify the doctor and the hospital involved. They also have to identify their primary care physicians, OB-GYNs, urologists, psychiatrists(!), psychologists(!), endocrinologists, and rheumatologists, and then sign authorizations allowing the defendants to obtain their medical records.
Johnson & Johnson and Ethicon, however, now say that’s not good enough. They ask the Court to order all plaintiffs to also get “all physician office notes addressing the indications for the implant, going back at least 1 year prior to the surgery, and physician notes one year following the implant, as well as all medical records reflecting any complaint to a physician of the injuries allegedly caused by the device, including but not limited to records evidencing excision, revision or explant of the mesh product …” Motion, p. 17.
Johnson & Johnson and Ethicon could, of course, already get all of that themselves, but they’d rather force the plaintiffs to spend the money and time to get those same medical records, and they’d prefer to have some leverage to use to kick the plaintiff’s case out if they miss a record or if a doctor disposed of the records.
It gets worse from there: Johnson & Johnson and Ethicon also demand plaintiff’s counsel provide all “intake questionnaires” under the guise that these “could help identify the offenders at these call centers.” Motion, p. 19.
That’s baloney. Johnson & Johnson and Ethicon want my privileged work product because they want to scour it for any arguable inconsistency with my client’s later testimony — who knows, maybe someone somewhere wrote a day wrong — and then pummel my client with it later. Frankly, I’ll gladly turn over my intake notes, if Johnson & Johnson and Ethicon’s lawyers are required to turn over their notes from their interviews with their clients. Somehow, I don’t think they would agree to that.
All in all, it’s just another example of a well-heeled defendant using the court system for a war of attrition against the very people it hurt with its products. The time has come to move these cases along, with joint trials and remands. These plaintiffs’ day in court shouldn’t be delayed by a myth about their ability to tell the truth about their bodies.