Philadelphia. Photo: Shutterstock

The judge overseeing the pelvic mesh mass tort in Philadelphia has denied a Johnson & Johnson subsidiary's bid to move the consolidated litigation outside of southeastern Pennsylvania.

Ethicon, a J&J subsidiary, had cited intense and allegedly incorrect media attention as the basis for its motion seeking to either have trials moved to a venue outside the five-county Philadelphia area, or have a “pretrial cooling off-period” before beginning the next trial. But Philadelphia Court of Common Pleas Judge Arnold New denied the company's bid late last week. New's one-page order denying the motion did not outline his reasoning.

Ethicon's motion, which was May 21, 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 mesh case set for trial in Philadelphia, Dunfee v. Ethicon, is expected to come before a jury later this week.

In an emailed statement, Kline & Specter attorney Shanin Specter, who is a leading attorney for the pelvic mesh plaintiffs, said, “It's unsurprising that Judge New denied Johnson & Johnson's motion to delay or move mesh trials. As Joe Louis said about his boxing foe, Billy Conn, 'he can run, but he can't hide.' So too J&J will rightly continue to face justice for its bad behavior toward America's women.”

A spokeswoman for Ethicon declined to comment.

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.”

Ethicon's motion was one of several recent pushes by Ethicon to make substantial changes to the pelvic mesh mass tort in Philadelphia this year, including seeking to remove a judge from the litigation—a move that was also ultimately unsuccessful.