A sample of transvaginal mesh. Photo: AP/Ted S. Warren

As consolidated federal multidistrict litigation over pelvic mesh defects continues to wind down, a new cluster of cases has been filed in the Philadelphia Court of Common Pleas, and they are turning into pitched battles over jurisdiction.

All of the newly filed cases were swiftly removed to federal court, but judges are now beginning to wade into novel issues that determine whether they should ultimately be remanded back to state court or sent out to federal jurisdictions across the country.

In one of those cases, U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania ruled Wednesday that the pelvic mesh suit filed by Washington state resident Nancy Markham against New Jersey-based mesh maker Ethicon should remain in federal court.

Baylson's 13-page ruling delved into the historical context behind the concept of fraudulent joinder, and determined that, although Markham may not have committed fraudulent joinder, the plaintiff's decision to sue a Pennsylvania-based company—despite the fact that the company was previously deemed immune from mesh litigation by a Philadelphia judge—did constitute improper joinder.

The legal wrangling, however, left Baylson to question why the whole issue was before the court to begin with.

"A federal judge must wonder why some lawyers, usually representing plaintiffs, go to such lengths to avoid litigating in federal court, that they sometimes invite the label of 'fraudulent joinder' when it does not truly apply," he said.

Baylson's ruling was the third to address the jurisdictional issue since November. Although his decision came to the same conclusion that Judge Mark Kearney reached in Monroe v. Ethicon in December, Baylson's holding split with that of Judge Wendy Beetlestone, who decided that another mesh case raising the same issues should be sent back to state court.

In the last three months, three newly filed mesh cases have been remanded to state court, while 10 have either been kept in Pennsylvania federal court or transferred to other U.S. districts, including those in Wisconsin, Rhode Island and New Jersey, according to a review of the dockets. In more than a dozen other cases similar motions stemming from jurisdictional disputes are pending, according to a review of the dockets.

According to court records, the jurisdictional disputes center around the Bucks County-based company Secant, which manufactured and then supplied the Prolene filaments that were eventually used to create the allegedly problematic pelvic mesh products. The new group of mesh cases, which were all filed by South Carolina firm Motley Rice, all named Secant as a defendant in their complaints, along with Johnson & Johnson subsidiary Ethicon. Ethicon is based in New Jersey, so including the Pennsylvania-based company would allow for state court jurisdiction over the claims.

However, more than five years before the new cluster of cases started to be filed, Philadelphia Court of Common Pleas Judge Arnold New had entered an order in the consolidated mass tort docket in state court, finding that Secant was immune from suit under the Biomaterials Access Assurance Act. New's 2014 decision was never appealed.

After the new cases were filed in Philadelphia court naming both Ethicon and Secant, the defendants removed the suits to the Eastern District, arguing that Secant had been fraudulently joined, since there was no way the plaintiffs could recover from Secant, as it had previously been let out of the litigation.

The plaintiffs pushed back, saying the cases should be remanded because there is no controlling authority regarding whether the Biomaterials Access Assurance Act applies to Secant's role in the mesh cases.

In her ruling in November, Beetlestone noted that the federal judge who handled the consolidated mesh litigation had issued an opinion finding there was little case law on the statute's applicability, and that New's orders about Secant on the state mass tort docket were not meant to apply to the case before her, which was filed in 2019. Ultimately, she said the defendants failed to show that the claims against Secant were "wholly insubstantial or frivolous."

"Neither the Superior Court of Pennsylvania nor the Pennsylvania Supreme Court has ruled on the issue of BAAA's applicability to Secant," Beetlestone said. "The decision of a single state court judge is not conclusive and cannot be said to render joinder frivolous."

Beetlestone's decision was in line with orders from Judge Nitza Quinones Alejandro, who likewise remanded two cases back to state court.

Kearney, however, said it was clear Secant wasn't a proper defendant in the case.

"We cannot find Motley Rice's curious filing of actions including Secant in the same case before the same judge has a colorable basis," Kearney said. "How would an order dismissing a party with prejudice have any effect if a party could simply ignore both the order and appellate rights and sue the same dismissed party in the same case with no new facts or theories?"

Kearney noted that the parties could take an appeal on the question, or could have chosen to sue in a venue where the issue hadn't already been decided, but given New's prior decision, he transferred the cases to federal venues where their actions arose.

Motley Rice attorney Esther Berezofsky, who is representing the plaintiffs, did not return a message seeking comment, and Tucker Ellis attorney Julie Callsen, who is representing Ethicon, declined to comment.

A plaintiffs-side attorney familiar with mesh litigation, however, said that the new lawsuits will eventually wind up in federal court, regardless of the outcome of the recent remand issues.

"It ultimately won't matter whether these Secant cases are kept in federal court now or later—the important point is that they'll eventually be in federal court one way or the other," the source said. "Secant doesn't belong in the litigation and will be dismissed by Judge New in plenty of time for the mesh manufacturer to effectuate uncontestable removal."

According to a review of the dockets, similar jurisdictional challenges are pending before at least 15 other judges in the Eastern District.