Ethicon 7/8

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Online Sources

1. Ethicon Targets Plaintiff's Evidence Ahead Of Mesh Trial

   Aug 6, 2015 | Law360

   By Jody Godoy
   
   
   Johnson & Johnson unit Ethicon Inc. sought Thursday to pare down the evidence a plaintiff can bring at an upcoming trial over injuries allegedly caused by one of the company's pelvic mesh slings.

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Online Sources

1. Ethicon Targets Plaintiff's Evidence Ahead Of Mesh Trial

   Aug 6, 2015 | Law360

   By Jody Godoy

   Johnson & Johnson unit Ethicon Inc. sought Thursday to pare down the evidence a plaintiff can bring at an upcoming trial over injuries allegedly caused by one of the company's pelvic mesh slings.
   
   Ahead of the Aug. 24 trial, Ethicon sought to exclude certain documents and attacked Tonya Edwards' claim that if Ethicon had warned her doctors of problems with the implant in 2008 she could have had it removed sooner. The company also sought to exclude evidence that the mesh products have caused injuries that Edwards did not suffer herself.
   
   “Ethicon should not have to waste its limited time and the jury’s limited attention to conditions and risks that Mrs. Edwards did not suffer and that cannot be the basis of her design defect claim,” Ethicon said.
   
   Edwards and her husband joined multidistrict litigation against Ethicon over various mesh implant products in December 2012. Edwards brought a host of product liability claims against the company for its Gynecare TVT Obturator, or TVT-O, device, which she had implanted in 2005. The device includes a mechanism used to place a mesh tape, or sling, under the urethra to provide support to treat stress urinary incontinence, according to court documents.
   
   The company sought to exclude documents written by Meng Chen, an Ethicon-affiliated doctor, in 2008 and 2009, arguing that the plaintiff can't use the documents to argue the company had a duty to warn physicians of issues with the product after it was sold.
   
   Ethicon said the documents are inadmissible under the law of Georgia, the plaintiff's home state, because she wants to use them to argue that Ethicon should have warned physicians when it found the implant caused certain side effects, including painful sexual intercourse, more frequently than the company had originally indicated.
   
   Georgia courts have held that drug and medical device companies don't have a duty to disclose data on the frequency of side effects, Ethicon argued. “Labels are incapable of conveying this sort of detail — much less keeping it current — or resolving debates between articles,” the company said.
   
   Ethicon also told U.S. District Judge Joseph R. Goodwin and U.S. Magistrate Judge Cheryl A. Eifert that the U.S. Food and Drug Administration had already issued a public health notice on the potential problems with the mesh in 2008 and that a family doctor and nurse practitioner who examined Edwards would not be subject to receive warnings from the company even if it had sent them. Edwards had not presented symptoms of mesh erosion when she visited those doctors, so the allegedly lacking warning would not have prompted them to urge her to have it removed sooner, just as the surgeon who implanted the mesh did not actually warn her after receiving the FDA notice, Ethicon argued.
   
   Lastly, the company argued the court should not allow Edwards to bring evidence of problems allegedly linked to the implant, including cancer and infections, which she did not experience. Ethicon pointed to rulings in two other mesh product trials that disallowed such evidence.
   
   The suit is part of one of seven MDLs containing a total of more than 70,000 cases assigned to Judge Goodwin over transvaginal surgical mesh devices used to treat pelvic organ prolapse and stress urinary incontinence.
   
   Last year, J&J won the first bellwether case against it in a five-day trial that concluded when Judge Goodwin granted the defendants’ motion for judgment. The Fourth Circuit upheld that judgment in March.
   
   Counsel for the parties did not immediately reply to requests for comment Thursday.
   
   Edwards is represented by John R. Fabry and Mark R. Mueller of Mueller Law.
   
   Ethicon and J&J are represented by David B. Thomas of Thomas Combs & Spann PLLC.
   
   The plaintiffs steering committee in the MDL is represented by Renee Baggett and Bryan F. Aylstock of Aylstock Witkin Kreis & Overholtz PLLC and Thomas P. Cartmell of Wagstaff & Cartmell LLP.
   
   The case is Edwards et al. v. Ethicon Inc., case number 2:12-cv-09972, in the U.S. District Court for the Southern District of West Virginia.
   
   The MDL is In re: Ethicon Inc. Pelvic Repair System Products Liability Litigation, case number 2:12-md-02327, in the U.S. District Court for the Southern District of West Virginia.
   

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