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MESH 12 17
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Pelvic Mesh Closings Focus on Statute of Limitations, Experts
| Legal Intelligencer
By Max Mitchell
A medical record from 2011 allegedly linking the plaintiff in the ongoing pelvic mesh trial to a potential implant-related products liability suit means her case should be tossed for failure to file within the statute of limitations, the defense attorney told jurors in his closing argument. -
Jurors Prepare To Mull First Philly Pelvic Mesh Case
Dec 17, 2015 | Law360
By Dan Packel
Philadelphia jurors will begin deliberating Friday in the first pelvic mesh case to be tried in the jurisdiction, after hearing the attorney for an Indiana woman contend the negligence among scientists at a Johnson & Johnson unit is the root cause of her inability to have sex.
Coverage
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Pelvic Mesh Closings Focus on Statute of Limitations, Experts
| Legal Intelligencer
By Max Mitchell
A medical record from 2011 allegedly linking the plaintiff in the ongoing pelvic mesh trial to a potential implant-related products liability suit means her case should be tossed for failure to file within the statute of limitations, the defense attorney told jurors in his closing argument.
Tarek Ismail of Goldman Ismail Tomaselli Brennan & Baum told the jury Thursday that a medical release for plaintiff Patricia Hammons from late 2011 shows that there’s a very slim chance she was not aware of the potential link between the mesh and her injuries in the two years before she filed suit. Ismail is representing Johnson & Johnson subsidiary Ethicon, which made the Gynecare Prolift mesh at issue.
The form, according to Ismail, gave permission to release Hammons’ medical records to a law firm for a potential products liability case related to an implant.
The form was signed in August 2011. That was within the statute of limitations for Hammons’ suit, which was filed May 31, 2013, thus meaning she would have had to know about the cause of her injuries no later than May 31, 2011. But Ismail noted the 10-week window between late May 2011 and the August 2011 agreement to give her information to an attorney was a short timeframe to have become aware of the cause of her injuries and meet with a lawyer.
Plaintiffs have contended that the surgery Hammons underwent to remove the mesh in 2012 was the first time Hammons was told the mesh caused her injuries.
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Jurors Prepare To Mull First Philly Pelvic Mesh Case
Dec 17, 2015 | Law360
By Dan Packel
Philadelphia jurors will begin deliberating Friday in the first pelvic mesh case to be tried in the jurisdiction, after hearing the attorney for an Indiana woman contend the negligence among scientists at a Johnson & Johnson unit is the root cause of her inability to have sex.
Closing arguments in plaintiff Patricia Hammons' case against J&J subsidiary Ethicon Inc. finally came to an end Thursday, after being disturbed the previous day because of an Uber protest in Center City Philadelphia at a fire alarm that emptied City Hall, home to the courtroom.
Attorney Shanin Specter of Kline & Specter PC resumed his entreaty to the seven women and five men on the jury, emphasizing the company repeatedly prioritized sales over patient health in its decisions on its Prolift mesh product.
“The unifying theme here is that every time there was a contest between marketing and safety, marketing won,” Specter said.
Hammons had filed suit in Philadelphia in May 2013, alleging that shards of the Prolift mesh, which was implanted between her bladder and vagina in 2009 in an effort to correct sagging of her internal organs, became implanted in her bladder.
Specter argued to the jurors that testimony in the trial, which began over two weeks ago, revealed that Ethicon's data on the product's safety was false and that the success rate of surgeries to implant the mesh was less than the 80 to 90 percent figure the company cited.
He pointed to the pronouncement from Indiana physician Mark Baker, who performed the initial surgery on Hammons, saying that if he knew in 2009 what he knows now about Prolift, he would not have used the product.
“Dr. Baker is an expert in this case,” Specter said. “He's telling us that it's an unsafe product.”
He also stressed the costs of Hammons' condition, known as dyspareunia, saying that as a result of her inability to have sex, “she doesn't feel like a woman.” He also noted that she must deal with the constant worry that her boyfriend might elect to leave her.
“That worry is part of her harm,” Specter said.
He also preemptively warned the jury against the statute of limitations defense that Ethicon raised.
Ethicon's attorney Tarek Ismail of Goldman Ismail Tomaselli Brennan & Baum LLP quickly flagged that issue near the start of his presentation, as he proceeded to march methodically through the nine-question verdict sheet.
He disputed Hammons' contention that she was unaware of the connection between the mesh and her troubles until she saw a new doctor in 2012, pointing to a letter that authorized the release of her medical records on implants to personal injury attorneys in August 2011. He suggested that letter showed Hammons failed to meet her burden of proof that she was ignorant of the connection before May 2011 — two years before her suit was filed.
Ismail also defended Ethicon's scientists, calling Specter's attacks on their conduct baseless.
“He hurled a lot of accusations at the men and women of Ethicon, questioning not only how they do their jobs, but also their basic human decency,” Ismail said. “Time after time, the things he said were not supported by evidence.”
Ismail also showed sympathy for the jurors, noting that the trial had been largely built upon video depositions — 25, by his count.
“That's either a record, or it's cruel and unusual punishment,” he said. “I don't know which.”
Hammons is represented by Shanin Specter, Lee Balefsky, Kila Baldwin and Michelle Tiger of Kline & Specter PC and Adam Slater of Mazie Slater Katz & Freeman LLC.
The defendants are represented by Susan Robinson of Thomas Combs & Spann PLLC, Matthew Moriarty of Tucker Ellis LLP, Molly Flynn of Drinker Biddle Reath LLP, and Tarek Ismail of Goldman Ismail Tomaselli Brennan & Baum LLP.
The case is Hammons v. Ethicon Inc. et al., case number 130503913, in the Court of Common Pleas of the State of Pennsylvania, County of Philadelphia.
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