J-A29008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: PELVIC MESH LITIGATION              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: ETHICON, INC.AND                :
    JOHNSON & JOHNSON                          :
                                               :
                                               :
                                               :
                                               :   No. 652 EDA 2018

                     Appeal from the Order February 9, 2018
              In the Court of Common Pleas of Philadelphia County
                        Civil Division at No(s): No. 829


BEFORE:      OTT, J., DUBOW, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 03, 2019

        Ethicon, Inc. and Johnson & Johnson (collectively “Ethicon”) 1 appeal

from the order entered December 4, 2017, as amended on February 9, 2018,

granting in part, and denying in part, Ethicon’s motion to dismiss based upon

lack of personal jurisdiction with respect to certain cases filed by non-resident

plaintiffs in this pelvic mesh mass tort litigation. Specifically, the trial court

granted Ethicon’s motion to dismiss all cases in which a non-resident plaintiff

was implanted with the Prolift+M pelvic mesh device, but denied its motion

with respect to non-resident plaintiffs that were implanted with one of eight

other pelvic mesh devices, because the mesh in those devices was knitted by

a Pennsylvania company, Secant Medical, Inc., and therefore, Pennsylvania
____________________________________________


   Former Justice specially assigned to the Superior Court.

1Ethicon is a “wholly owned subsidiary of [] Johnson & Johnson.” Plaintiff’s
Master Long Form Complaint and Jury Demand, 5/14/2014, at 2.
J-A29008-18



could exercise personal jurisdiction over Ethicon. On appeal, Ethicon argues

the trial court erred in concluding Pennsylvania had specific jurisdiction over

any claims filed by non-resident plaintiffs. For the reasons below, we affirm.

      The relevant facts and procedural history are aptly summarized by the

trial court as follows:

             By Order dated February 11, 2014, this Court created the
      In Re Pelvic Mesh Litigation mass tort program for the coordination
      of all cases in which a plaintiff alleged she suffered injuries as a
      result of the implementation of a pelvic mesh medical device. [A]
      “Master Docket” was created to serve as a depository for the filing
      of pleadings, motions, orders, and other documents common to
      all pelvic mesh cases; once a document or order has been filed on
      the Master Docket, it could be incorporated by reference in any
      other properly filed Motion or Pleading. [A case management
      order] also required the filing of a Master Long-Form Complaint
      which made allegations common to all plaintiffs in the litigation;
      the filing of the Master Long-Form Complaint superseded the
      pleadings in each individual case. Each individual plaintiff was
      then required to file a case-specific short-form complaint, which
      incorporated the Master Long-Form Complaint by reference and
      set forth the factual circumstances unique to that individual
      plaintiff.

            Various defendants1 stated their intention to file preliminary
      objections based on lack of personal jurisdiction in all cases
      involving plaintiffs who did not reside, or have their pelvic mesh
      implanted, in Pennsylvania (hereinafter referred to as “non-
      Pennsylvania plaintiffs”). At the direction of this Court, the
      defendants filed on the Master Docket a Motion to Dismiss on the
      grounds of lack of personal jurisdiction, which encompassed all
      cases filed by non–Pennsylvania plaintiffs. The Court permitted
      extensive discovery, briefing, and oral argument on the issue of
      personal jurisdiction. By Order dated March 30, 2015, this Court
      sustained personal jurisdiction over cases involving non-
      Pennsylvania plaintiffs, and denied the Motion to Dismiss.
      __________
      1   The Master Long-Form Complaint named ten defendants
      including, Ethicon, Inc., Johnson & Johnson, and Boston Scientific
      Corp.

                                     -2-
J-A29008-18


     __________

           In late May 2017 and early June 2017, the United States
     Supreme Court decided two cases involving personal jurisdiction,
     BNSF Ry. Co. v. Tyrell, 137 S.Ct. 1549 (2017) and Bristol-
     Myers Squibb Co. v. Superior Court of California, San
     Francisco County, 137 S.Ct. 1773 (2017). On June 30, 2017,
     Defendants Ethicon, Inc., and Johnson & Johnson (herein after
     referred to as “Moving Defendants”) filed a Motion for
     Reconsideration in which they argued the U.S. Supreme Court's
     decisions in Tyrell and Bristol-Myers required this Court to
     dismiss the claims of non-Pennsylvania plaintiffs due to lack of
     personal jurisdiction.2 By Order dated August 1, 2017, and
     docketed August 2, 2017, this Court granted the Motion for
     Reconsideration, vacated the March 30, 2015 Order denying the
     Motion to Dismiss, and ordered further briefing on the issue of
     personal jurisdiction in light of Tyrell and Bristol-Myers Squibb.
     __________
     2 Defendant Boston Scientific Corp filed a similar Motion for
     Reconsideration; however, this Court limits its focus to Moving
     Defendants.
     __________

            In their brief, the non-Pennsylvania plaintiffs conceded this
     court lacked general jurisdiction, but argued this Court had
     specific personal jurisdiction over all cases, including those filed
     by non-Pennsylvania plaintiffs. The non-Pennsylvania plaintiffs
     made two arguments in support of specific jurisdiction - 1) the
     involvement of a Pennsylvania based company, Secant Medical
     Inc.,3 in the manufacturing process permitted this Court to
     exercise specific jurisdiction in cases involving non–Pennsylvania
     plaintiffs, and 2) this Court has specific personal jurisdiction over
     the cases of all non-Pennsylvania plaintiffs because Moving
     Defendants conducted clinical tests and safety studies in and
     around Allentown, Pennsylvania.4
     __________
     3 Secant Medical Inc. was originally named as a defendant in the
     Master Long-Form Complaint; however, for reasons unrelated to
     the issue of jurisdiction, this Court dismissed Secant Medical Inc.
     by Order dated August 25, 2014.




                                     -3-
J-A29008-18


     4 Since this Court sustained specific personal jurisdiction under the
     first argument, the second argument advanced by the non-
     Pennsylvania plaintiffs will not be addressed.
     __________

            With respect to the first argument, the non-Pennsylvania
     plaintiffs produced evidence showing a portion of the
     manufacturing process for eight pelvic mesh medical devices -
     Gynemesh/Gynemesh PS, Prolene, Prolift, Prosima, TVT, TVT-
     Exact, TVT-Obturator, and TVT-Secur - occurred at Secant
     Medical, Inc.’s Bucks County facility.    In the manufacturing
     process for these eight pelvic mesh medical devices, Moving
     Defendants use an extrusion process at their facility in Georgia to
     transform polypropylene resin pellets, known as PROLENE®, into
     spools of filament.    Moving Defendants send the spools of
     PROLENE® filament to Secant’s facility in Perskasie, Bucks
     County, where Secant knits the filament into mesh according to
     specifications set forth by Moving Defendants. Secant then
     returns the knitted mesh to Moving Defendants, who engage in
     further steps of the manufacturing process.

            At oral argument, this Court [i]nquired whether Secant
     knitted the mesh used in every pelvic mesh medical device
     produced by Moving Defendants; the parties provided conflicting
     responses.     Accordingly, the Court issued an Order, dated
     September 15, 2017, and docketed September 18, 2017,
     requesting post-argument briefing focused on two questions: 1)
     whether Secant Medical, Inc., was the exclusive provider of mesh
     used in the pelvic mesh medical devices, and 2) if not, whether it
     was possible to discern if a particular pelvic mesh medical device
     contained Secant-provided mesh.           The parties conducted
     discovery relevant to the issues presented in the September 18th
     Order and filed post-argument briefs in support of their respective
     positions.

           The post-argument discovery revealed two classes of non-
     Pennsylvania plaintiffs - 1) women implanted with the Prolift+M
     pelvic mesh medical device, and 2) women implanted with one of
     eight other pelvic mesh medical devices, Gynemesh/Gynemesh
     PS, Prolene, Prolift, Prosima, TVT, TVT-Exact, TVT-Obturator, and
     TVT-Secur, manufactured by Moving Defendants. James Williams,
     the strategic sourcing manager for Ethicon, testified that between
     2001 and 2015, Secant knitted the mesh used in all of the
     Gynemesh/Gynemesh PS, Prolene, Prolift, Prosima, TVT, TVT-
     Exact, TVT-Obturator, and TVT-Secur pelvic mesh medical

                                     -4-
J-A29008-18


     devices. Secant was not involved in the manufacturing of the
     Prolift+M.

            By Order dated December 4, 2017, and docketed December
     5, 2017 on the Master Docket, this Court granted the Motion to
     Dismiss in part and denied the Motion to Dismiss in part. This
     Court sustained personal jurisdiction over cases involving non–
     Pennsylvania plaintiffs implanted with the Gynemesh/Gynemesh
     PS, Prolene, Prolift, Prosima, TVT, TVT-Exact, TVT-Obturator, or
     TVT-Secur pelvic mesh medical devices, but found a lack of
     personal jurisdiction over cases in which the non-Pennsylvania
     plaintiff was implanted with the Prolift+M pelvic mesh medical
     device.

           Moving Defendants filed a Motion to Amend in which they
     requested this Court amend its December 4th Order to include the
     language prescribed by Pa.R.A.P. 311(b)(2).           See Pa.R.A.P.
     311(b)(2) (providing an interlocutory appeal as of right in cases
     in which the trial court sustained personal jurisdiction if “the court
     states in the order that a substantial issue of venue or jurisdiction
     is presented”). On January 2, 2018, a non-Pennsylvania plaintiff
     who had been implanted with the Prolift+M pelvic mesh medical
     device, Ronna Moore, appealed the dismissal of her case for lack
     of personal jurisdiction. In light of the fact a portion of the
     December 4th Order was subject to appellate review by virtue of
     Ms. Moore’s appeal, this Court believed judicial economy would
     best be served if an appellate court reviewed the December 4th
     Order in its entirety. Accordingly, by Order dated February 9,
     2018, this Court granted Moving Defendants’ Motion to Amend,
     and added the necessary language from Rule 311(b)(2), thereby
     granting Moving Defendants an appeal as of right.5
     __________
     5 By Order dated February 13, 2018, the Superior Court quashed
     Ms. Moore’s appeal. See Moore v. Ethicon, Inc., et al., 175
     EDA 2018.
     __________




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J-A29008-18



Trial Court Opinion, 5/18/2018, at 1-6 (record citations omitted). Ethicon filed

a timely notice of appeal on February 14, 2018,2 and the trial court filed its

opinion on May 18, 2018.

       Thereafter, on June 19, 2018, a panel of this Court issued an opinion in

Hammons v. Ethicon, 190 A.3d 1248 (Pa Super. 2018), one of the pelvic

mesh mass tort cases that has already proceeded to trial. That case, like the

one sub judice, involved a non-Pennsylvania plaintiff who was implanted with

one of the mesh devices manufactured by Secant. The panel held, inter alia,

the trial court properly denied Ethicon’s motion to dismiss the action for lack

of personal jurisdiction. See id. at 1264. After this Court denied reargument

en banc in Hammons, Ethicon filed a petition for allowance of appeal in the

Pennsylvania Supreme Court. See Hammons v. Ethicon, 458 EAL 2018. To

date, that petition is still pending. Another pelvic mesh case, which raises the

same jurisdictional issue, was scheduled for argument before another panel

of this Court in August of 2018. See Carlino v. Ethicon, 1129 EDA 2016.

       Prior to that argument, on July 3, 2018, Ethicon filed an application

requesting this Court consolidate all three cases – the present case,

Hammons, and Carlino - for consideration by this Court en banc; the

application was denied on November 13, 2018. Oral argument on the Carlino


____________________________________________


2 The trial court did not direct Ethicon to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




                                           -6-
J-A29008-18



appeal proceeded as scheduled on August 8, 2018.3                     Subsequently, on

September       27,    2018,     Ethicon       filed   a   Petition   for   Extraordinary

Jurisdiction/King’s Bench Jurisdiction in the Pennsylvania Supreme Court,

requesting the Supreme Court assume jurisdiction over all three appeals. To

date, that petition is still pending. See 112 EM 2018.

        This appeal challenges only the portion of the trial court’s December 4,

2017, order that denied Ethicon’s motion to dismiss, for lack of jurisdiction,

the cases filed by non-resident plaintiffs who were implanted with eight pelvic

mesh devices produced by Ethicon, and manufactured, in part, in Pennsylvania

by Secant Medical, Inc. (“Secant”).4 For the reasons that follow, we conclude

we are bound by the Hammons decision.

        Our standard of review is well-settled:

        [W]hen deciding a motion to dismiss for lack of personal
        jurisdiction the court must consider the evidence in the light most
        favorable to the non-moving party. This Court will reverse the
        trial court’s decision regarding preliminary objections only where
        there has been an error of law or an abuse of discretion. Once
        the moving party supports its objections to personal jurisdiction,
        the burden of proving personal jurisdiction is upon the party
        asserting it.    Courts must resolve the question of personal
        jurisdiction based on the circumstances of each particular case.

Mendel v. Williams, 53 A.3d 810, 816–817 (Pa. Super. 2012) (quotation

omitted).
____________________________________________


3   No decision has been filed in the Carlino appeal.

4 As explained supra, the trial court granted Ethicon’s motion to dismiss the
cases filed by non-resident plaintiffs who were implanted with the Prolift+M
device. That ruling is not a subject of this appeal.


                                           -7-
J-A29008-18



      A state’s authority to exercise personal jurisdiction over a non-resident

defendant is limited by the Due Process Clause of the United States

Constitution.   Hammons, supra, 190 A.3d at 1261.            Generally, personal

jurisdiction over a non-resident defendant is permissible “where a defendant

ha[s] ‘purposefully directed’ his activities at the residents of the forum, [so

that] he is presumed to have ‘fair warning’ that he may be called to suit there.”

Id. (citation omitted). “A defendant’s activities in the forum State may give

rise to either specific jurisdiction or general jurisdiction.” Mendel, supra, 53

A.3d at 817. Here, only specific jurisdiction is at issue as conceded by the

non-resident plaintiffs. See Plaintiffs-Appellees’ Brief at 10.

      As this Court explained in Hammons, the Bristol-Myers decision

outlined three requirements that must be met in order for a forum to exercise

specific jurisdiction over an out-of-state defendant:

      First, the defendant must have “purposefully availed itself of the
      privilege of conducting activities within the forum State or have
      purposefully directed its conduct into the forum State.” Bristol-
      Myers, 137 S.Ct. at 1780. Second, the plaintiff's claim must
      “arise out of or relate to” the defendant’s activities in the forum
      state. Id. at 1785. Third, jurisdiction must be fair and reasonable
      so as not to offend tradition notions of fair play and substantial
      justice. Id. The fairness factors in the third requirement that a
      court will consider are “the burden on the defendant, the forum
      State’s interest in adjudicating the dispute, the plaintiff’s interest
      in obtaining convenient and effective relief, the interstate judicial
      system’s interest in obtaining the most efficient resolution of
      controversies, and the shared interest of the several States in
      furthering fundamental substantive social policies.” Id. at 1786.

Hammons, supra, 190 A.3d at 1262.




                                      -8-
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       These considerations are codified in Pennsylvania’s long-arm statute, 42

Pa.C.S. § 5322, which provides, in pertinent part:

       (a) General rule.--A tribunal of this Commonwealth may
       exercise personal jurisdiction over a person … as to a cause of
       action or other matter arising from such person:

                                       ****
           (3) Causing harm or tortious injury by an act or omission in
           this Commonwealth.
                                       ****
        (b)     Exercise     of   full    constitutional   power     over
       nonresidents.--In addition to the provisions of subsection (a) the
       jurisdiction of the tribunals of this Commonwealth shall extend to
       all persons who are not within the scope of section 5301 (relating
       to persons) to the fullest extent allowed under the Constitution of
       the United States and may be based on the most minimum contact
       with this Commonwealth allowed under the Constitution of the
       United States.

       (c) Scope of jurisdiction.--When jurisdiction over a person is
       based solely upon this section, only a cause of action or other
       matter arising from acts enumerated in subsection (a), or from
       acts forming the basis of jurisdiction under subsection (b), may
       be asserted against him.

42 Pa.C.S. § 5322(a)(3), (b), and (c).

       In the present case, Ethicon contends the non-resident plaintiffs failed

to establish their causes of action arose from Ethicon’s limited connection with

Pennsylvania.5 See Ethicon’s Brief at 31. To that end, Ethicon first argues

the trial court’s dismissal of Secant from the case – and its concomitant ruling



____________________________________________


5We note the Products Liability Advisory Council filed an amicus curie brief in
support of Ethicon.




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J-A29008-18



that Secant was not a “manufacturer” of the mesh6 – precludes any finding

that Secant collaborated with Ethicon on the design of the mesh. See id. at

34. Furthermore, Ethicon utilized Secant only for “one step of the production

process,” i.e., “knitting of sheets of mesh,” which was “not a step that gave

rise to the non-Pennsylvania [p]laintiffs’ supposed injuries.” Id. at 42.

       Second, Ethicon insists none of the allegations in the Master Long-Form

Complaint arise out of the process by which Secant knitted the mesh. See

id. at 34. It further claims Secant did not contribute to the design of the mesh

product, as is evident by the non-Pennsylvania plaintiffs’ acknowledgment that

Ethicon exercised “complete control over Secant’s activities.”7        Id. at 36.

Ethicon emphasizes both Bristol-Myers and Section 5322(c) require that

“there must be a direct correlation between the conduct of the defendant in
____________________________________________


6 The trial court dismissed Secant from the litigation because it found Secant
was a “biomaterials supplier” as defined in the Biomedical Access Assurance
Act, 21 U.S.C. §§ 1601-1601. Order, 8/25/2014, at 1. The Act “insulates
biomaterials suppliers from liability in medical device failure litigation, subject
to a few narrow exceptions.” Daley v. Smith & Nephew Inc., 321 F. Supp.
3d 891, 893 (E.D. Wis. 2018). However, as the trial court explained in its
opinion, the Act “does not address the issue of personal jurisdiction.” Trial
Court Opinion, 5/18/2018, at 11.

7  Rather, Ethicon insists its relationship with Secant is similar to the
relationship between the California distributer and Bristol-Myers in the United
States Supreme Court’s decision – a relationship that the Court found did not
support California’s exercise of personal jurisdiction over Bristol-Myers in
cases filed by non-California plaintiffs. See Bristol-Myers, supra, 137 S.Ct.
at 1783 (Bristol-Myers contracted with California company solely to distribute
drug nationwide; there was no allegation Bristol-Myers engaged in any
“relevant acts” with company in California, nor evidence the non-resident
plaintiffs took the drug distributed by the California company).



                                          - 10 -
J-A29008-18



the state and the claims themselves[.]”            Id. at 44.   See Bristol-Myers,

supra, 137 S.Ct. at 1780; 42 Pa.C.S. § 5322(c). Here, it argues the trial

court “focused solely on the fact that one of the counts pleaded in the Master

Long-Form Complaint – addressed generically to ‘defendants’ and at a time

prior to Secant’s dismissal – is a manufacturing-defect claim.” Ethicon’s Brief

at 48-49. However, Ethicon maintains there has been no evidence presented

to support such a claim and, in any event, personal jurisdiction must be

analyzed on a claim-by-claim basis. See id. at 49-50.

       Conversely, the non-resident plaintiffs argue, pursuant to the doctrine

of stare decisis, we should affirm the trial court’s ruling based upon this Court’s

binding decision in Hammons.8 We agree. Although the Hammons opinion

followed an appeal of a jury verdict, the relevant facts are the same as those

herein. In fact, the non-resident plaintiffs cited evidence developed during

the Hammons trial in their response to Ethicon’s motion to dismiss filed after

the trial court granted reconsideration, and during oral argument on the

motion. See Supplemental Letter Brief in Opposition to the Motion to Dismiss,

9/7/2017, at 9-15; N.T., 9/13/2017, at 33-36, 44-48.


____________________________________________


8 “The doctrine of stare decisis maintains that for purposes of certainty and
stability in the law, ‘a conclusion reached in one case should be applied to
those which follow, if the facts are substantially the same, even though the
parties may be different.’” In re Angeles Roca First Judicial Dist.
Philadelphia Cty., 173 A.3d 1176, 1187 (Pa. 2017) (quotations omitted).
Nevertheless, as Ethicon points out, “this Court is not obligated to follow a
decision … that it knows to be based on an incorrect, and dispositive,
conclusion of fact.” Ethicon’s Reply Brief at 23.

                                          - 11 -
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       In its reply brief, Ethicon argues Hammons is not dispositive of the

claim presented in this appeal for three reasons: (1) “Hammons stands on

its own facts” because it was based upon a “trial record that is distinct from

the record that exists here[;]” (2) “the Hammons opinion was premised on

material misstatements of jurisdictionally significant facts[;]” and (3) the

Hammons panel incorrectly placed the burden on Ethicon to “disprove

personal jurisdiction.” Ethicon’s Reply Brief at 21-22 (emphasis removed).

None of these arguments warrants relief.

       The pertinent jurisdictional facts in Hammons and the case sub judice

are the same. The plaintiffs in both cases are non-Pennsylvania residents,

who were implanted with one of the eight pelvic mesh devices manufactured,

in part, by Secant in Pennsylvania. Although some additional facts regarding

clinical studies conducted in Pennsylvania were developed during the

Hammons trial, the non-resident plaintiffs herein cited that evidence in

support of their argument in opposition to Ethicon’s motion to dismiss.

Furthermore, we disagree with Ethicon’s assertion that the Hammons

decision was based upon “material misstatements” of fact.9 Ethicon’s Reply

Brief at 22. The Hammons panel explained that Ethicon took a hands-on

approach in its dealings with Secant - providing detailed specifications for

knitting of the mesh, requiring Secant to test sample for compliance with its

____________________________________________


9This is an issue for appellate review by the Pennsylvania Supreme Court,
should it grant Ethicon’s petition for allowance of appeal in the Hammons
case.

                                          - 12 -
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specifications, and travelling to Pennsylvania on “multiple occasions to

observe the mesh production process.” Hammons, supra, 190 A.3d at 1263.

The design of the mesh, and in particular its inelasticity, is an important issue

in this litigation.   Ethicon’s direct oversight of the knitting of the mesh in

Pennsylvania, coupled with its reliance on clinical studies performed by a

Pennsylvania gynecologist,10 is sufficient to bring Ethicon within the

jurisdiction of this Commonwealth. Lastly, with regard to Ethicon’s contention

that the Hammons panel incorrectly placed upon it the burden to disprove

specific jurisdiction, we note the Hammons Court’s decision was based upon

the evidence presented by the non-resident plaintiff in support of her claim

that Pennsylvania properly asserted specific jurisdiction over Ethicon.

Accordingly, Ethicon has failed to demonstrate the decision of this Court in

Hammons is not            binding    precedent upon   the   issue   raised herein.

Consequently, we conclude the trial court did not err in denying, in part,

Ethicon’s motion to dismiss, and we affirm the order on appeal.

       Order affirmed.




____________________________________________


10  See Hammons, supra, 190 A.3d at 1263-1264. We note Ethicon also
contends Hammons is distinguishable because the trial court herein “did not
attribute any jurisdictional significance” to the Pennsylvania gynecologist.
Ethicon’s Reply Brief at 15. However, as noted supra, the trial court authored
its opinion before the decision in Hammons was filed.


                                          - 13 -
J-A29008-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/19




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