Philadelphia. Photo: Shutterstock

Intense and allegedly inaccurate media scrutiny focusing on pelvic mesh products and the string of recent multimillion-dollar verdicts has tainted the Philadelphia jury pool, Johnson & Johnson subsidiary Ethicon has argued in a bid to have upcoming pelvic mesh trials moved out of the Philadelphia area.

Last week, Ethicon, the primary defendant in nearly 90 pelvic mesh cases pending in Philadelphia, filed a motion seeking to either have trials moved to a venue outside the five-county suburban Philadelphia area, or have a “pretrial cooling off-period” before beginning the next trial.

The motion, which was filed last week, came in the wake of an $80 million verdict against Ethicon in mid-May, and a $120 million verdict against the company in late April. The next pelvic mesh trial is set to come before a jury Thursday, and, following that trial, the next wave of state court cases is set to be tried in the fall.

The 21-page motion Drinker Biddle & Reath attorney D. Alicia Hickok filed on behalf of Ethicon focused on media coverage of the U.S. Food and Drug Administration's recent decision to remove transvaginal pelvic organ prolapse kits from the market, which, the company contended, inaccurately indicated that the FDA's decision applied to all mesh products. According to Ethicon's motion, it did not apply to any of Ethicon's products currently on the market.

The motion also said statements made by Kline & Specter attorneys both in the press and on social media amplified the “false, slanted and inflammatory” publicity.

“Defendants are entitled to a trial by impartial jurors based on the evidence adduced at trial, not by a jury inflamed by plaintiff's counsel outside the bounds of the courtroom,” Ethicon said in the motion. “Accordingly, defendants ask the court to fashion relief for the upcoming trials—either by transferring the cases outside the five-county media market, or by having a pretrial cooling-off period, during which plaintiffs' counsel should be instructed not to stir up additional press coverage.”

Kline & Specter attorney Charles “Chip” Becker filed a response for the plaintiffs contending that any issues about the jury's potential understanding of pelvic mesh are best addressed during voir dire.

“It has produced fair and impartial juries for every pelvic mesh case that has been tried in Philadelphia,” Becker said in the 10-page response. “Ethicon has never suggested the contrary. It will produce a fair and impartial jury in Dunfee as well, especially with the added protection of the standard jury instruction on staying away from the media and rendering judgment based on evidence alone.”

Kline & Specter attorney Shanin Specter, who is a lead attorney for the plaintiffs, called J&J's motion “silly.”

“American's women would be safer if the company would spend as much time examining the integrity of their products as they spend trolling Kline & Specter's lawyers' social media sites,” Specter said in an emailed statement.

A spokeswoman for Ethicon declined to comment about the venue dispute.

Ethicon's motion is one of several recent pushes by Ethicon to make substantial changes to the pelvic mesh mass tort in Philadelphia this year.

In March, the company sought to block Philadelphia Court of Common Pleas Judge Kenneth Powell from presiding over any pelvic mesh trials based on arguments that Powell's mother had a pending lawsuit against another J&J subsidiary over the blood thinner Xarelto. (Xarelto litigation has since come to a global settlement.) According to the company, Powell failed to properly disclose his mother's lawsuit until after he presided over one trial and was assigned to handle another. Ethicon pushed to have Powell removed not only from the global mass tort program, but also from an upcoming pelvic mesh trial.

The state Supreme Court denied the request as it related to the global mass tort program, and the Philadelphia judge presiding over the mass tort inventory also denied the request to remove Powell from the individual case McFarland v. Ethicon, which in April resulted in a $120 million verdict.

The Supreme Court also recently agreed to hear Ethicon's argument that Pennsylvania does not have jurisdiction over the pelvic mesh litigation in light of the U.S. Supreme Court's high-profile decision in Bristol-Myers Squibb v. Superior Court of California.