Julie Rhoades beats Johnson & Johnson in TVM Skirmish

DENVER — Matthews & Associates Julie Rhoades092attorney Julie Rhoades battled Johnson & Johnson lawyers at the Tenth Circuit Court of Appeals on April 11 and prevailed.

Johnson & Johnson attorneys attempted to remove 650 transvaginal mesh cases from Oklahoma State Court into the federal multi-district litigation court (MDL) set up in West Virginia, where Judge Joseph Goodwin has, thus far, not been charitable towards women injured by transvaginal mesh (TVM). In addition, because the federal MDL for mesh cases is already the largest ever created since the advent – in 1968* – of federal MDL courts, one danger is that the cases could languish there for an indeterminate amount of time.

Matthews & Associates filed the claims of approximately 650 TVM clients in 11 cases in state court in Oklahoma. Defendants Johnson & Johnson and Ethicon (a division of J & J) removed the cases to federal court in Oklahoma and sought transfer to the federal TVM MDL court, where it is estimated that 50,000 cases are now pending between all TVM MDLs (there are actually now seven, total).  The basis for the removals was the federal Class Action Fairness Act (CAFA), which provides for federal jurisdiction over claims of more than 100 persons sought to be tried jointly.  Alternatively, the Defendants claimed that a New Jersey plaintiff had been included in each case in order to defeat diversity jurisdiction via fraudulent misjoinder of plaintiffs, since the Defendants are from New Jersey. (Author’s Note: Federal courts have diversity jurisdiction – jurisdiction over cases where all plaintiffs are from different (diverse) states from the defendant(s)).

Before the transfer to the MDL could become effective, Ms. Rhoades asked the federal court in Oklahoma to remand the cases back to the state court, because, in her opinion, the basis for the removal jurisdiction, CAFA, did not apply, and because fraudulent misjoinder of plaintiffs had not occurred since all plaintiffs’ claims had common issues (all had J&J polypropylene TVM).  Her position was that CAFA did not apply because none of the Matthews & Associates cases had 100 or more plaintiffs, and each complaint specifically stated that the claims were joined “solely for pretrial purposes.”  The federal district court in Oklahoma agreed with Ms. Rhoades and ordered the cases remanded (sent back) to Oklahoma state court.

Generally, remand rulings are not appealable. However, CAFA has a specific provision that provides for an expedited appeal.  Based on CAFA, Defendants J&J and Ethicon appealed the remand ruling of the Oklahoma federal district court (that sent the cases back to state court) to the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit affirmed the ruling of the Oklahoma federal district court. Thus, the cases are returning to the Oklahoma state court.

Johnson & Johnson attorneys may file petition for writ of certiorari with the United States Supreme Court, asking the Court to review on appeal the decision of the Tenth Circuit that CAFA does not apply and thus, there is no jurisdiction in the federal courts.  If petition for cert is filed, Defendants will seek a stay of the state court actions, pending determination of their petition and if granted, their appeal. This stay will, in Ms. Rhoades opinion, likely be granted by the state court.

Because the sitting Supreme Court has been so friendly towards corporations’ arguments at the expense of citizens’ rights (Mensing, Bartlett, Citizens United, McCutcheon, etc. al.), it seems quite possible that the issue of whether the 650 Oklahoma cases remain in OK or wind up in the federal MDL will be at least partially in the hands of the nation’s highest court.

* The MDL statute is 28 U.S.C. § 1407 in the United States Code. The MDL was created in 1968 in response to a General Electric price-fixing scandal in the early 1960s. The legal fallout from the GE scandal overwhelmed the federal courts with criminal prosecutions and related civil litigation. Hence the need of the MDL for handling great numbers of cases filed against one defendant, or in the case of transvaginal mesh, several large numbers of cases filed against several defendants.

Julie Rhoades beats Johnson & Johnson in Mesh Skirmish

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