WEST VIRGINIA RECORD

CHARLESTON – A motion alleging plaintiffs' attorneys have been fraudulent in their aggressive recruitment of clients for pelvic mesh litigation has been filed in a MDL lawsuit against Ethicon and Johnson & Johnson.

The defendants claim that during the last several years, the pelvic mesh litigation has continued to aggressively grow, with nearly half the cases in this MDL involving products within the TVT family, according to the motion filed Jan. 14 in the U.S. District Court for the Southern District of West Virginia.

These devices are considered the "gold standard" for treatment of stress urinary incontinence, have been endorsed by almost every relevant medical society and are among the most studied medical devices on the market, according to the motion.

The defendants claim the amount of these cases when they are considered the "gold standard" is due to a "direct relationship between the number of filings and the inappropriate, indeed illegal, solicitation of women by unscrupulous groups and individuals, compounded by ubiquitous attorney advertising."

"Numerous women have contacted Johnson & Johnson and Ethicon, upset about the disclosure of their private medical information and misled into believing Johnson & Johnson or Ethicon disseminated that information," the motion states.

The defendants claim they feel compelled to inform the court of these activities, which include the apparent misuse of women’s private health information protected by HIPAA, and encouraging women to file baseless lawsuits.

"These tactics and others detailed in the supporting brief not only threaten the integrity of the judicial system, but also put women’s health at risk by interfering with the doctor-patient relationship," the motion states.

The defendants claim they want to rectify this "untenable situation" so that non-fraudulent cases can be fairly addressed and the "illegal solicitation calls stopped."

"Plaintiffs with non-fraudulent claims are entitled to their day in court, the motion states. "In order to help effectuate that goal, Johnson & Johnson and Ethicon proposed mechanisms last year to cull the docket. The dramatically different landscape now underscores the need to implement such procedures."

The American Tort Reform Association is urging the Department of Justice and Congress to investigate these claims, according to a press release.

"There seems to be something of a double standard when it comes to the willingness of authorities to investigate and prosecute allegations of fraud," ATRA president Tiger Joyce said. "Mortgage lenders, insurers, energy producers, utilities, a variety of manufacturers and many others are routinely subjected to made-for-media scrutiny by congressional committees, the Department of Justice, the Securities and Exchange Commission and state attorneys general."

However, Joyce said in the press release, rarely do examples of even blatant fraud by plaintiffs' attorneys draw comparable scrutiny.

"Too often, authorities are willing to look the other way and leave private sector victims of trial-lawyer fraud on their own to seek justice," he said.

Lawsuits brought under the Racketeer Influenced and Corrupt Organizations Act by CSX Transportation, Feld Entertainment, and Chevron have successfully punished fraud by plaintiffs' attorneys in asbestos, animal rights and environmental litigation in the last year, according to the ATRA press release.

"With roughly a 100,000 similar claims pending in federal court, today’s defense motion in pelvic mesh litigation raises still more questions about the ethics and practices of some personal injury lawyers and the firms they contract to recruit clients," Joyce said. "But investigative authorities continue to avert their eyes.

Joyce said the latest edition of ATRA's annual Judicial Hellholes report raised a red flag regarding the "alarming multimillion-dollar campaign" the plaintiffs' bar has waged to make mesh litigation the nation's fastest growing tort, even though regulators have not declared the surgical implants unsafe, and even as many physicians consider the implants to be the best treatment available for many women.

The motion contains 15 exhibits that include a transcript of a recruiter's phone call with a woman who had not even had mesh surgery and encouraged the woman to lie in order to receive between $30,000 and $40,000 to compensate her; and affidavits from women who also received the solicitation phone calls who had not had the mesh implant surgeries.

"How many millions or billions of dollars must U.S. companies unjustly be forced to squander in defending themselves against fraudulent lawsuits before members of Congress, state and federal prosecutors and state bar associations begin to actively investigate, prosecute and punish such fraud?" Joyce asked in the press release. "The 114th Congress’s House and Senate judiciary committees should begin gathering information and conducting hearings into allegations of widespread trial-lawyer fraud, and prosecutors and bar associations should pay close attention to their findings."

U.S. District Court for the Southern District of West Virginia case number: 2:12-md-02327