The Physiomesh litigation has been delayed due to the coronavirus pandemic. The latest MDL development occurred on Nov. 1, when Ethicon attorneys told a federal court in New Jersey that it needed access to marketing materials used by several attorney lead generation companies. , according to Law360.com.
More than 3,500 Ethicon Physiomesh lawsuits have been consolidated into multidistrict litigation. The MDL plaintiffs alleged that the hernia repair medical device made by Ethicon, a subsidiary of Johnson & Johnson, is faulty because it contains a special coating that caused them to develop severe inflammation or pain.
Ethicon criticized the companies for fighting the subpoenas because the documents could help end the plaintiff’s claims. A brief filed by defense attorneys said: “This discovery may demonstrate that a plaintiff’s legal action is statute-barred by establishing that on the date plaintiff contacted the principal investigator, plaintiff understood that he or she may have a basis for a claim.
Ethicon’s attorneys also said in the brief that the marketing information could reveal material information about the plaintiff’s injuries. The subpoena sought communications from Prolegal Services LLC, Reliance Litigation, Case Legal Media, LegalCalls.com, DrugWatch, On Point Legal Leads, Consumer Tort Network, Demandlane and The Search Engine Guys.
A plaintiff’s executive committee sought to protect the communications by filing a motion on Oct. 15 that challenged the validity of the subpoenas. The committee called the subpoenas a “fishing expedition” and said the communications should be considered private due to solicitor-client privilege.
“In short, the defendants’ subpoenas solicit privileged documents and are based on nothing more than a ‘hope and prayer’ that the target entities might have something – discoverable or not – related to these plaintiffs,” they said. said the plaintiffs, according to Law360.com.
Ethicon countered by arguing that the plaintiff’s panel had failed to demonstrate the need for a protective order under federal rules of civil procedure.
In late October, a federal jury in Ohio cleared another maker of hernia truss devices — CR Bard — in Bellwether’s first hernia truss trial. In addition to the Ethicon and CR Bard MDLs, a third mesh hernial MDL was formed, pitting plaintiffs against Atrium.