Defendants in Mass Tort Pelvic Mesh Lawsuits May Now Succeed With Removal to Federal Court – Non-Diverse Defendant Wins Dismissal

In a significant win for Secant Medical LLC, (Secant), Judge Arnold L. New of the Court of Common Pleas of Philadelphia County granted its motion to dismiss mass tort pelvic mesh personal injury claims in a decision dated August 22, 2014.  The court held that under the Biomedical Access Assurance Act (BAAA), Secant is not a manufacturer or seller of the pelvic mesh. Secant, a Pennsylvania company, was undoubtedly named to defeat diversity jurisdiction in an effort by plaintiffs to stay in state court in Pennsylvania.  With its dismissal from the case, there is now diversity jurisdiction, which may enable the remaining defendants to successfully remove the case to federal court.  Judge New’s decision is available here.

Secant is the manufacturer of polypropylene mesh that was used in many pelvic mesh implants.  Many lawsuits have been filed by plaintiffs in Pennsylvania state court that allege they were injured as a result of defective pelvic mesh implants.  (There is an MDL handling these cases in West Virginia as well).  A mass tort program was created in the Philadelphia County Court of Common Pleas in February 2014 to coordinate the pelvic mesh claims against pelvic mesh defendants including Secant and other manufacturers.

The procedural history is unusual and interesting.  Previously, defendants Ethicon and Johnson & Johnson attempted to remove the cases to federal court alleging that Secant was fraudulently joined to defeat diversity. It is almost axiomatic that many plaintiff’s law firms prefer state court and one of the ways they try to get there, and stay there, is to name a non-diverse party against whom there are weak or non-viable claims.  Hence, the defendants argued in the MDL that Secant was fraudulently joined because there is no valid claim against it on account of the BAAA.  Plaintiffs moved to remand to state court arguing that Secant was not fraudulently joined.  The MDL judge remanded to state court holding that there was no fraudulent joinder.  Notwithstanding, Johnson & Johnson’s counsel continued to remove cases.  The federal judge tired of the removals, and imposed Rule 11 sanctions on counsel for improper removal. (More information regarding that decision is available here).

As the removal and remand and sanctions fight indicates, Secant, a Pennsylvania company, was clearly and undeniably named for the purpose of defeating diversity in an effort to remain in state court in Pennsylvania.  Plaintiff’s counsel, local Philadelphia lawyers, got what they asked for.  They got the cases into Pennsylvania state court.  So, what happened in State Court there?

Not surprisingly, Secant moved to dismiss pursuant to the Biomaterials Access Assurance Act (BAAA).  According to an FDA guidance document from April 2001, the BAAA applies to the raw materials and components in implants and was established to protect some biomaterial suppliers of implanted medical devices from liability in civil suits. (For more information regarding the BAAA, click here). The Act was passed by Congress in 1998 in response to an embargo by manufacturers of bulk biomaterials, such as silicone gel and Teflon. The embargo was put in place by some manufacturers after being found liable for injuries allegedly caused by finished implants.

Specifically, the BAAA provides that “a biomaterials supplier shall not be liable for harm to a claimant caused by an implant.” Under the statute, a biomaterials supplier may be liable for damages only if one of the following factors are met: when the supplier acts as the manufacturer of the implanted device; when the supplier acts as the seller of the implanted device; when the supplier fails to meet specifications; or when the supplier has substantial economic ties to either the manufacturer or the seller of the implanted device.

With regard to the pelvic mesh litigation in Pennsylvania, Plaintiffs opposed Secant’s motion to dismiss arguing that the mesh manufactured by Secant was too vital a component in the implant for the company to avoid liability under the BAAA.  Secant argued that since it supplied only a piece of an implant to the ultimate manufacturers of the pelvic mesh implant, the BAAA mandated that the action be dismissed against it.  Judge New agreed with Secant.

However, with this decision by Judge New, a funny thing happened on the way to the court house where plaintiff’s counsel wanted to be.  The state court judge before whom plaintiffs’ counsel fought so hard to be before dismissed plaintiff’s’ claims.  This is one of the best of examples of the old saw to watch out what you ask for because you might get it.

With Secant’s dismissal from the case, there is now diversity jurisdiction, which may enable the remaining defendants to successfully remove the case back to federal court in West Virginia. That is, if they want to go back to the judge that sanctioned them for trying to get before him in the first place. This is a fascinating strategic quandary – do you stay in the place that you fought to be able to leave as of right?  Or do you go to the place that you wanted to be but were sanctioned for making every effort to be there?

News reports indicate that the plaintiffs’ counsel is planning an appeal, and  that the remaining defendants are determining how to proceed. Counsel for Johnson & Johnson, one of the remaining defendants, is reportedly considering removal to federal court for the multidistrict  pelvic mesh litigation.

This decision highlights three critical considerations. The first is the protection that the BAAA can afford to the manufacturers of component parts of implantable devices. The second is the strategic importance of diversity jurisdiction. Tremendous time and resources were spent by both sides to get into the courthouse that they wanted to be.  Many times, perhaps most times, it is advantageous to be in a federal court over a given state court jurisdiction (even one with an established program for handling mass torts).  The third is that with judges, like juries, you never know what is going to happen.  As the old-time Saturday Night Live comic used to say, “It’s always something.”

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