In November 2011, a Maryland woman underwent surgery at Calvert Memorial Hospital in Maryland where Dr. Jeffrey Welgoss implanted her with a sling manufactured by Ethicon. The patient asserts that she continued to experience pain and discomfort after the removal of the sling and that her Ethicon TVT sling has also caused her to suffer pain and discomfort. She sued Calvert Memorial, Dr. Welgoss and his surgical team in the Calvert Circuit Court in Maryland asserting claims of medical negligence and a product liability claims against Ethicon and its parent company, Johnson & Johnson (collectively the “Ethicon Defendants”).

empty steel chairEthicon defendants removed the action to federal court and the case was assigned to Judge Messitte. Ethicon defendants moved to sever the product liability claims from the medical negligence claim. They argued that the healthcare defendants are not necessary parties to the claim against the Ethicon defendants, or alternately, that the claims against the healthcare defendants have been fraudulently misjoined.

The plaintiff opposed the motion and moved to remand the case to state court. She asserts that the healthcare defendants are necessary and proper parties to the claims against the Ethicon Defendants because if the medical negligence and products liability claims were tried separately, each set of defendants could use the “empty chair” defense and blame her injuries on the actions of the missing group of defendants.

Judge Messitte found that severance is particularly appropriate in this case because if would allow for the transfer of the plaintiff’s claims against the non-healthcare defendants to the transvaginal mesh multidistrict litigation pending in the Southern District of West Virginia.

The Judge stated, “[Plaintiff’s] medical negligence claims against the Maryland healthcare Defendants hinge on whether they deviated from the standard of care of healthcare professionals in selecting the sling and implanting during surgery. Her products liability claim against the Ethicon defendants turn on whether those defendants, at an earlier point in time, improperly designed, manufactured, tested, advertised, and gave directions regarding use of the sling. These standards of care and the deviation from same are different and distinct from one another. As a result, the Court has the authority to sever the claims against the two groups of defendants.”

Judge Messitte held: “Whatever inconvenience [plaintiff] might suffer from her having to litigate her claims in two separate forums, that inconvenience is far exceeded by the prejudice of requiring the manufacturer of a TVT to defendant on ‘many more than just two fronts.’” The Judge further stated, “Forcing the Ethicon defendants to litigate TVT claim in state court throughout the country whenever and wherever the claims might be joined to claims against healthcare providers that installed the device would defeat the entire purpose of the MDL.”