The family of  man who died after surgery due to allegedly defective surgical staples initially sued J&J, Ethicon, and Ethicon Endo-Surgery (EES).  Johnson & Johnson (“J&J”), its subsidiary Ethicon, Inc. (“Ethicon”), and Ethicon Endo-Surgery, Inc. (“EES”). In discovery, Defendants asserted that EES was the entity responsible for placing surgical stapler devices into the stream of commerce. Plaintiffs, with that information, filed an amended complaint against EES, dropping J&J and Ethicon from the suit. Ultimately, the case against EES for breach of warranty was dismissed, as the plaintiffs had failed to provide the defendant with pre-suit notice. In the meantime, Plaintiffs learned in a deposition of the hospital that J&J Healthcare Systems — not EES — had sold the stapler and staples, contrary to Defendants’ prior discovery responses, (and contrary to information defense counsel would later share).  Although there was still time on the Federal Court’s scheduling order to amend, plaintiffs’ counsel did not want to disrupt the scheduling of an upcoming mediation. Before the mediation, however, the Federal Magistrate issued a report and recommendation in which it was recommended that the case against EES be dismissed for failure to provide pre-suit notice and leave to amend be denied. Plaintiffs then filed a new case in State Court against J&J, EES, J&J Healthcare Systems, and the hospital, pleading this time that they had adequately provided pre-suit notice to these “Phillips II” Defendants. EES’s counsel, days later, notified the plaintiffs the mediation was cancelled, while indicating that Ethicon US — not J&J Healthcare Systems or EES — had actually sold the stapler and staples.  After this second action was removed to Federal Court, both cases were dismissed with no leave to amend. The U.S. Fifth Circuit affirmed.

The basis of the res judicata ruling against the defendants other than EES is not completely clear.  The Court of Appeal noted simply that: “Plaintiffs do not challenge the substantive preclusion rulings in Phillips II on appeal. They argue only that the Phillips II dismissal on preclusion grounds was improper because the Phillips I dismissal with prejudice was improper. As Defendants assert, without any briefing on the preclusion analyses in Phillips II, Plaintiffs have forfeited any substantive challenges to that ruling.”

(It is also not clear whether the Texas State Court requirement for pre-suit notice applies to the initial lawsuit filed in Federal Court under the recent Berk v. Choy, 607 U.S. 187 (2026) decision(?))

 

Phillips v. Ethicon, 2026 WL 2969090 (5th Cir. Oct. 2, 2026).