Barakova et al v. Johnson & Johnson et al

Filing 15

TRANSFER ORDER re: pldg. ( 1 in MDL No. 2782) Transferring 16 action(s) to Judge Richard W. Story in the N.D. Georgia.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRI CT LITIGATION, on 6/2/2017. Associated Cases: MDL No. 2782, CO/1:17-cv-00543, CO/1:17-cv-00603, FLM/3:17-cv-00229, FLM/6:16-cv-01663, FLM/6:17-cv-00393, FLM/6:17-cv-00503, FLM/8:16-cv-03502, FLM/8:17-cv-00113, GAM/4:17-cv-00031, GAN/4:17-cv-00036, GAN/4:17-cv-00040, ILS/3:16-cv-00368, ILS/3:17-cv-00172, KYE/7:17-cv-00037, MA/1:16-cv-12278, NJ/3:17-cv-01455, OKN/4:16-cv-00729, SC/2:17-cv-00614 (TLL)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: ETHICON PHYSIOMESH FLEXIBLE
COMPOSITE HERNIA MESH
PRODUCTS LIABILITY LITIGATION

MDL No. 2782

TRANSFER ORDER

Before the Panel:* Plaintiffs in nine of the actions listed on Schedule A pending in five
districts move under 28 U.S.C. § 1407 to centralize pretrial proceedings in this litigation in the
Middle District of Florida or, alternatively, the Southern District of Illinois. This litigation consists
of eighteen actions pending in ten districts, as listed on Schedule A. The Panel also has been notified
of 49 related actions pending in 29 districts.1 Defendants Johnson & Johnson and Ethicon, Inc.
(together, Ethicon) oppose centralization or, alternatively, suggest centralization in the District of
New Jersey or, alternatively, the Eastern District of Kentucky or the Northern District of Georgia.
In reply, moving plaintiffs support centralization in the Northern District of Georgia. Since the close
of briefing, more than fifteen plaintiffs and potential tag-along plaintiffs have responded in favor of
centralization in one or more of the districts supported by movants, and two of these plaintiffs
alternatively suggest centralization in the Eastern District of Louisiana or the Western District of
Texas, respectively. All parties support or do not oppose centralization in the Northern District of
Georgia.
On the basis of the papers filed and hearing session held, we find that these actions involve
common questions of fact, and that centralization in the Northern District of Georgia will serve the
convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.
All of the actions share common factual questions arising out of allegations that defects in
defendants’ Physiomesh hernia mesh can lead to complications when implanted in patients,
including herniation through the mesh, recurrent hernia formation and/or rupture, and deformation
of the mesh. Many plaintiffs more specifically allege that the multi-layer coating in Physiomesh
prevented adequate incorporation of the mesh and caused or contributed to a variety of serious
complications, and that the polypropylene mesh portion of the Physiomesh was insufficient to
withstand normal abdominal forces. Centralization will eliminate duplicative discovery; prevent
inconsistent pretrial rulings; and conserve the resources of the parties, their counsel, and the
judiciary.
*

Judge Charles R. Breyer and Judge Lewis A. Kaplan took no part in the decision of this

matter.
1

These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),
7.1, and 7.2.

-2In opposing centralization, Ethicon argues, inter alia, that (1) the unique facts of each
plaintiff’s case will predominate over common facts; (2) alternatives to centralization are available
to minimize duplication of effort; and (3) creation of an MDL will encourage the filing of additional
claims against Ethicon.
Ethicon argues that individual factual issues will predominate with respect to the wide variety
of alleged injuries, causation, and the timing of each plaintiff’s injury as it relates to the warnings
given with the product and the applicable statute of limitations. The Panel has rejected the argument
that products liability actions must allege identical injuries to warrant centralization. See, e.g., In
re: Cook Medical, Inc., IVC Filters Mktg., Sales Practices & Prods. Liab. Litig., 53 F. Supp. 3d
1379, 1381 (J.P.M.L. 2014). Indeed, “[t]hough these actions present individual issues of fact, this
is usually true of products liability cases and medical device cases, in particular.” Id. at 1380
(citation omitted); see also In re: Wright Med. Tech., Inc., Conserve hip Implant Prods. Liab. Litig.,
844 F. Supp. 2d 1371, 1372 (J.P.M.L. 2012) (“[A]lmost all injury litigation involves questions of
causation that are case- and plaintiff-specific. Such differences have not been an impediment to
centralization in the past.”). As in other medical device cases centralized by the Panel, these actions
“share paramount issues concerning the design, manufacture, testing, and marketing of a single
medical device.” In re: Zimmer Durom Hip Cup Prods. Liab. Litig., 717 F. Supp. 2d 1376, 1378
(J.P.M.L. 2010).
On several occasions, the Panel has rejected the argument that we should deny centralization
because creating an MDL would proliferate non-meritorious claims. See In re: Seroquel Prods.
Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006) (“The response to such concerns more
properly inheres in assigning all related actions to one judge committed to disposing of spurious
claims quickly.”); see also In re: Cook IVC Filters, 53 F. Supp. at 1381 (“the transferee court
handling several cases in an MDL likely is in a better position—and certainly is in no worse position
than courts in multiple districts handling individual cases—to properly address meritless claims”).
Moreover, whether particular claims are without merit is a matter “more appropriately addressed to
the court which oversees those claims.” In re: Seroquel, 447 F. Supp. 2d at 1378.
We are also not persuaded that informal coordination is a practicable solution here. Almost
70 actions are pending in 36 district courts, and dozens of law firms are involved in this litigation.
Section 1407 centralization will place all actions before one judge who can structure pretrial
proceedings to enhance efficiency and more effectively minimize overlap.
We find, as all responding parties agree, that the Northern District of Georgia is an
appropriate transferee district. This district is accessible for domestic and international parties and
witnesses, and is centrally located to many of the pending actions. Two constituent actions and two
potential tag-along actions are pending in this district. We assign the litigation to Judge Richard W.
Story, an experienced jurist who will steer these cases on a prudent course.

-3IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the Northern District of Georgia are transferred to the Northern District of Georgia and, with the
consent of that court, assigned to the Honorable Richard W. Story for coordinated or consolidated
pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
Sarah S. Vance
Chair
Marjorie O. Rendell
R. David Proctor

Ellen Segal Huvelle
Catherine D. Perry

IN RE: ETHICON PHYSIOMESH FLEXIBLE
COMPOSITE HERNIA MESH
PRODUCTS LIABILITY LITIGATION

MDL No. 2782

SCHEDULE A

District of Colorado
BARAKOVA, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 1:17-00543
KEEFER, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 1:17-00603
Middle District of Florida
GRAHAM v. JOHNSON & JOHNSON, ET AL., C.A. No. 3:17-00229
QUINN v. ETHICON, INC., ET AL., C.A. No. 6:16-01663
CARR, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 6:17-00393
MILLER v. JOHNSON & JOHNSON, ET AL., C.A. No. 6:17-00503
GILMAN v. JOHNSON & JOHNSON, ET AL., C.A. No. 8:16-03502
SUNTER v. JOHNSON & JOHNSON, ET AL., C.A. No. 8:17-00113
Middle District of Georgia
FRANKLIN, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 4:17-00031
Northern District of Georgia
BROWN v. JOHNSON & JOHNSON, ET AL., C.A. No. 4:17-00036
WINFREY v. JOHNSON & JOHNSON, ET AL., C.A. No. 4:17-00040
Southern District of Illinois
HUFF v. ETHICON, INC., C.A. No. 3:16-00368
WORRELL v. ETHICON, INC., ET AL., C.A. No. 3:17-00172
Eastern District of Kentucky
CARRILLO v. JOHNSON & JOHNSON, ET AL., C.A. No. 7:17-00037
District of Massachusetts
WATRING v. ETHICON, INC., C.A. No. 1:16-12278

MDL No. 2782 Schedule A (Continued)

District of New Jersey
RAMEY v. JOHNSON & JOHNSON, ET AL., C.A. No. 3:17-01455
Northern District of Oklahoma
COX v. ETHICON, INC., C.A. No. 4:16-00729
District of South Carolina
SHELTON, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 2:17-00614