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ethicon 9/17
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J&J Unit Wants $1.2M Pelvic Mesh Judgment Wiped Out
Sep 16, 2015 | Law360
By Jess Davis
Johnson & Johnson’s Ethicon Inc. unit on Wednesday told a Texas appellate court it should throw out a $1.2 million jury verdict awarded to a woman injured by its TVT-O pelvic mesh because there wasn’t evidence it was defectively designed, in the first such appeal to be argued.
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J&J Unit Wants $1.2M Pelvic Mesh Judgment Wiped Out
Sep 16, 2015 | Law360
By Jess Davis
Johnson & Johnson’s Ethicon Inc. unit on Wednesday told a Texas appellate court it should throw out a $1.2 million jury verdict awarded to a woman injured by its TVT-O pelvic mesh because there wasn’t evidence it was defectively designed, in the first such appeal to be argued.
In oral argument before the Fifth Court of Appeals in Dallas, J&J said plaintiff Linda Batiste failed to prove in trial court the TVT mesh was defectively designed, arguing she did not show there were safer alternatives available to treat stress incontinence. J&J also argued Batiste presented only speculative evidence that injuries could have been caused by defective pelvic mesh, without reaching the necessary threshold of showing her injuries were actually caused by its product.
Batiste, who in April 2014 was awarded $1.2 million in compensatory damages following a 12-day trial, maintained she had presented more than enough evidence to support the jury’s verdict. She argued J&J’s appeal asked the appellate court to re-weigh evidence already considered by the jury, in a “kitchen sink approach” to knocking out the verdict.
Arguing for J&J, Stephen Brody of O’Melveny & Myers LLP said though Batiste brought up a number of alternative pelvic mesh devices at trial, she did not show those alternatives had lower overall safety risks than the TVT. An alternative device that might result in fewer of one type of injury but that would dramatically increase the risk of infection or death can’t be considered safer, he said.
“Safety is the key question, and the key failure that runs through the alternatives proposed at the trial court,” Brody said.
The 2014 verdict found Ethicon’s TVT-O mesh was defectively designed, but declined to award punitive damages and found the company gave sufficient warning of the known risks. Batiste’s case was the first in the U.S. to hold Ethicon responsible for the bladder sling product used to treat stress urinary incontinence.
Arguing for Batiste, Sara Turman-Vedral of Freese & Goss PLLC said J&J was arguing for an enhanced version of Texas law that makes it more difficult to prove a design defect.
She argued trial evidence supports a finding that multiple safer alternative designs existed and were available and said the question of availability shouldn’t be cabined to a list of devices approved by the U.S. Food and Drug Administration. Turman-Vedral said a lack of FDA approval isn’t conclusive because some of the alternative designs mentioned at the trial, that were in use in other countries, hadn’t been submitted to the FDA for consideration.
The issue of causation was also argued at length. Batiste has a lengthy record of health problems, including a number of abdominal surgeries, and J&J argued the trial court evidence did not rule out the possibility her injuries were caused by a previous surgery.
Justice Bob Fillmore asked Turman-Vedral several times to point out the specific evidence that Batiste’s injuries were caused by the TVT mesh the jury found to be defective. Justice Bill Whitehill said he didn’t know how to draw a line between evidence that injuries like those Batiste suffered can result from a design defect and evidence that Batiste’s injuries were in fact caused by that defect.
Turman-Vedral said expert testimony from the doctor who removed Batiste’s mesh — and has removed similar devices from thousands of other patients — was enough evidence that her injuries resulted from the allegedly flawed design of the TVT device.
Johnson & Johnson is represented by Stephen Brody and Charles Lifland of O’Melveny & Myers LLP and Scott Stolley of Cherry Petersen Landry & Albert LLP.
Batiste is represented by Peter de la Cerda of Edwards & de la Cerda PLLC, Richard A. Capshaw of Capshaw & Associates, Tim Goss and Sara Turman-Vedral of Freese & Goss PLLC and David P. Matthews of Matthews and Associates.
The case is Johnson & Johnson et al. v. Batiste, case number 05-14-00864-CV, in the Texas Court of Appeals for the Fifth District.
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