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'Who's calling, please?' J&J has a theory, and it's not good

We're back to the subject of transvaginal mesh litigation involving thousands of plaintiffs and some very large medical device manufacturers, including Johnson & Johnson. When we left off in January, we had talked broadly about the product liability claims, and we had discussed how contingent fee agreements between plaintiffs' attorneys and their clients work.

Finally, we touched on reports of telephone calls to women urging them to join the multi-jurisdictional litigation. The women said the callers identified themselves as Johnson & Johnson employees or representatives from the U.S. Food and Drug Administration. The purpose of the phone call was, the women said, to get them to file lawsuits against J&J; if they did, the callers said, they could receive as much as $40,000.

The callers knew a little too much about the women, it seems. According to the complaints received by J&J, the callers were armed with private health information about the women. In some cases, the caller would know that the woman had undergone surgery recently; in others, the caller would attempt to get similar information from the woman.

J&J contended in a motion to the court that it was not responsible for any of these contacts. The company added that it certainly would not misuse private medical information that way, either -- and not just because it's a violation of federal privacy laws. And, the company suggested that plaintiffs' attorneys were behind the calls.

To get to the bottom of the issue, J&J asked for the court's permission to launch a formal investigation. The company requested that plaintiffs' attorneys be questioned under oath, especially regarding direct solicitation of business. Law firms have used general advertisements to attract plaintiffs, but rules of professional conduct bar law firms and attorneys from soliciting business from an individual, especially an individual known to be a victim.

The company also asked the court to require plaintiffs that named J&J as a defendant to offer proof that J&J was, in fact, the manufacturer of the device linked to the plaintiffs' injuries.

On Feb. 11, J&J withdrew its motion without explanation. The plaintiffs' attorneys had asserted that J&J was trying to complicate the litigation unnecessarily in order to slow the progress of the lawsuits.

If nothing else, the incident serves as a reminder that personal injury attorneys cannot run roughshod over the rights of potential clients. Anyone who has received a call like this may do well to consult his own attorney for advice on how to proceed.

Sources:

Reuters, "J&J drops bid to probe plaintiff solicitation in mesh cases," Jessica Dye, Feb. 11, 2015

Carrier Management, " Mesh Lawsuits," Jessica Dye, Jan. 15, 2015

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