Howe v. Ethicon, Inc.

Background

This is a medical-device product-liability action seeking damages allegedly arising after Rachel Howe was implanted with a Gynecare TVT Retropubic surgical-mesh device manufactured by Ethicon, Inc. The plan states that Ethicon, Inc. is a wholly owned subsidiary of Johnson & Johnson and that the device was designed to treat stress urinary incontinence in women.

The parties jointly submitted a Civil Case Discovery Plan under Federal Rules of Civil Procedure 16 and 26(f), following the court’s August 24, 2022 order. The filing also included proposed protective, scheduling, and pathology orders, which were filed separately.

Discovery Arrangements

The parties agreed to be bound by an order governing discovery in federal pelvic-mesh cases outside the related multidistrict litigation, or MDL. They agreed, subject to a protective order and other stated conditions, to use the general discovery conducted in MDL No. 2327 and not repeat duplicative general discovery, including repetitive company-witness depositions. The plan preserved objections to the admissibility of documents and deposition testimony at trial and allowed discovery of matters not previously addressed in the MDL.

The parties also agreed to use, when possible, existing depositions of general-causation experts and current or former employees of Ethicon and Johnson & Johnson from the MDL or related state-court proceedings. Additional depositions could be sought for updated or supplemental expert opinions or testimony that had become outdated, although the defendants did not concede that supplemental depositions were needed. Experts who had already been deposed on a report generally would not be deposed again unless they provided new or supplemental opinions.

Case-specific depositions—including Howe, her treating physicians, friends and family members, case-specific experts, the defendants’ sales representatives, and other relevant witnesses—would proceed under the Federal Rules of Civil Procedure and the Southern District of New York’s local rules unless the parties agreed otherwise. The parties would work together to allocate deposition time between Howe and the defendants. Howe would use the defendants’ global document production from the MDL, and the parties agreed to submit a protective order and proposed scheduling order for the court’s consideration.

Court’s Action and Effect

The document concludes, “SO ORDERED,” and is signed by Judge Nelson S. Roman. The court therefore entered the parties’ joint discovery plan for this case. The filing establishes discovery procedures and incorporates referenced MDL-related arrangements; it does not resolve whether any party is liable or decide the merits of Howe’s product-liability claims.