Babcock v. Ethicon, Inc. et al
Filing
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MEMORANDUM OPINION & ORDER re: 15 MOTION by Wes Scott Larsen to Withdraw as Attorney for on behalf of Lisa A. Babcock and 18 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss Non-Pelvic Mesh Cases Without Prejudice; the parties are DIRECTED t o confer by no later than 8/03/2018 to determine the appropriate venue for this case, and to submit a joint venue recommendation to the court by 8/10/2018; this action is STAYED until 8/10/2018 to allow plaintiff to retain other counsel; plaintiff is DIRECTED to file a statement of intent to proceed without counsel or to have new counsel enter an appearance by 8/10/2018; if the plaintiff fails to do so, the Defendants may move the court for appropriate relief, including dismissal with prejudice; the 18 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss Non-Pelvic Mesh Cases Without Prejudice is DENIED; the Clerk is DIRECTED to remove this case from Ethicon Wave 8 and lift the 2327 Wave 8 flag from the docket sheet. Signed by Judge Joseph R. Goodwin on 7/3/2018. (cc: counsel of record; plaintiff Lisa A. Babcock, via certified mail, return receipt requested) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE: ETHICON, INC.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL 2327
THIS DOCUMENT RELATES TO:
Babcock v. Ethicon, Inc., et al.
Civil Action No. 2:16-cv-05114
MEMORANDUM OPINION & ORDER
Pending before the court are two motions: (1) the Motion for Leave to Withdraw
as Counsel of Record, filed by plaintiff’s counsel on April 16, 2018 (“Motion to
Withdraw”) [ECF No. 15]; and (2) the Motion to Dismiss Without Prejudice, filed by
defendants Ethicon, Inc. and Johnson & Johnson (collectively, the “Defendants”) on
May 21, 2018 (“Motion to Dismiss”) [ECF No. 18].
Without the assistance of counsel of record, the plaintiff improvidently filed a
Response on her own behalf requesting a stay of proceedings and in opposition to the
Motion to Dismiss on June 18, 2018 [ECF No. 22]. On June 21, 2018, the Defendants
filed their Reply in support of the Motion to Dismiss and in opposition to the CrossMotion to Stay Proceedings [ECF No. 23]. The office of the undersigned judge has also
received three letters, dated April 13, 2018, May 22, 2018, and June 4, 2018, signed
by plaintiff Lisa Babcock that raise various concerns, and include her objections to
the Motion to Dismiss. The court will consider the statements made by Lisa Babcock
on her own behalf only to the extent they provide greater context generally to the
pending motions in this case. 1 Other statements, assertions, or requests are to be
disregarded. See United States v. Ramage, No. 1:09-cr-00061, 2009 WL 4110321, at
*2 (N.D. W. Va. Nov. 25, 2009) (citing Downs v. Hubert, 171 Fed. Appx. 640 (9th Cir.
2006)). As detailed in the motions and corresponding papers, there are several issues
that require resolution before this case can proceed.
A. Motion to Withdraw
In the Motion to Withdraw, Wes Scott Larsen of James, Vernon & Weeks seeks
leave to withdraw as counsel for the plaintiff under Local Civil Rule 83.4. As
justification for the withdrawal, counsel states that the plaintiff has terminated the
attorney-client relationship.
Generally, the court’s standard procedures in response to a motion to withdraw
following the plaintiff’s termination of counsel of record is to stay all proceedings
briefly to allow the plaintiff to obtain new counsel or file a statement of intent to
proceed pro se. The disputed Motion to Dismiss, however, presents a rather peculiar
wrinkle that requires some brief discussion.
B. Motion to Dismiss
According to the Defendants, the disputed product in this case is beyond the
scope of this MDL and, thus, dismissal is warranted under Rule 12(c). As the parties
are well aware, this case resides in one of seven MDLs assigned to me by the Judicial
Panel on Multidistrict Litigation (“JPML”) concerning the use of transvaginal
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The court has delivered these letters to the clerk’s office to be entered on the docket in this case.
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surgical mesh to treat pelvic organ prolapse and stress urinary incontinence. In its
Transfer Order, the JPML described the civil actions comprising the 2327 MDL as
cases “involving allegations of defects in various models of pelvic surgical mesh
products manufactured by three groups of manufacturers,” such as the Defendants –
to this court for coordinated pretrial proceedings. See In re: Ethicon, Inc. Pelvic
Repair Sys. Prods. Liab. Litig., 844 F. Supp. 2d 1359, 1360 (J.P.M.L. 2012).
The court agrees with the parties 2 that the disputed product giving rise to this
civil action, a Hernia Mesh Product identified by the plaintiff as “Proceed (PCND1),”
does not belong in this MDL. However, the court is not convinced that dismissal is
warranted under Rule 12(c) as requested by the Defendants. See Priority Auto Grp.,
Inc. v. Ford Motor Co., 757 F.3d 137, 139 (4th Cir. 2014) (“The standard for Rule 12(c)
motions is the same as applied to Rule 12(b)(6) motions, which should only be granted
if, ‘accepting all well-pleaded allegations in the plaintiff’s complaint as true and
drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it
appears certain that the plaintiff cannot prove any set of facts in support of his claim
entitling him to relief.’”).
The Defendants’ basis for judgment on the pleadings is rather simple. Because
the Master Long Form Complaint assumes only allegations related to female pelvic
mesh, and because the Short Form Complaint filed by the plaintiff alleges injuries
While she concedes that this case does not belong before this court, the plaintiff objects to the entry
of judgment, pleading that the court transfer rather than dismiss her case to avoid statute of
limitations issues.
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arising from the implementation of a hernia mesh product, the Defendants argue that
the plaintiff’s complaint is insufficient as a matter of law. I disagree.
A complaint is sufficient if it plausibly articulates grounds for relief beyond the
speculative level. Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). To enter judgment on the
grounds articulated by the Defendants would subvert this well-settled standard into
investigating whether a person is entitled to participate, rather than whether they
are entitled to relief. In other words, whether a case belongs in a particular MDL is
not decisive on whether the plaintiff alleges a cognizable claim, regardless of the
internal procedures adopted by the MDL court. As such, relief under Rule 12(c) is not
appropriate.
The court therefore FINDS it appropriate to transfer this case to a district
court of proper venue. 3 See Pretrial Order # 12(B)(4) (stating that upon the
completion of all pretrial proceedings applicable to case appropriately consolidated in
this MDL, “pursuant to 28 U.S.C. § 1404(a), [the court] will transfer each case filed
directly in the Southern District to a federal district court of proper venue as defined
in 28 U.S.C. § 1391, based on the recommendations of the parties to that case”) [ECF
No. 23].
“This court shall not be deemed to be the ‘transferor court’ simply by virtue of the action having been
directly filed into MDL No. 2327. The direct filing of actions in MDL No. 2327 in the Southern District
of West Virginia is solely for the purposes of consolidated discovery and related pretrial proceedings
as provided by 28 U.S.C. § 1407 and, the parties submit to this court’s personal jurisdiction and venue
in the Southern District for those purposes only.” Id. (emphasis added).
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Here, the parties Joint Venue Recommendation is not due until September 3,
2018. See Pretrial Order # 303 (selecting this case to become part of Ethicon Wave 8,
a collection of cases subject of the same scheduling deadlines). Therefore, to facilitate
the resolution of this issue, the court ORDERS the parties to confer by no later than
August 3, 2018 to determine the appropriate venue for this case, and to submit a joint
venue recommendation to the court by August 10, 2018. 4
The court further ORDERS that this action is STAYED until August 10, 2018
to allow plaintiff to retain other counsel. The court DIRECTS plaintiff to file a
statement of intent to proceed without counsel or to have new counsel enter an
appearance by August 10, 2018. If the plaintiff fails to do so, the Defendants may
move the court for appropriate relief, including dismissal with prejudice.
For the reasons stated above, the Motion to Dismiss [ECF No. 18] is DENIED.
The court DIRECTS the Clerk to remove this case from Ethicon Wave 8; lift
the 2327 Wave 8 flag from the docket sheet; and send a copy of this Order to counsel
of record and to plaintiff Lisa A. Babcock, via certified mail, return receipt requested
to 2808 W. Cherry Lane, Apt. J307, Boise, Idaho 83705, her last known address.
ENTER: July 3, 2018
The court is aware that Ms. Babcock believes that this action belongs in New Jersey state court, as
evidenced by an attached application for designation of Multi-County Litigation filed by a number of
attorneys on behalf of plaintiffs alleging harm arising from “Multi-Layered Hernia Mesh” products
manufactured by the Defendants. A copy of the same application attached by the plaintiff to her June
4, 2018, letter is available at https://www.judiciary.state.nj.us/notices/2018/n180412a.pdf.
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