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Ethicon 2/12
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Jury docks Johnson & Johnson $14m in pelvic mesh lawsuit
Feb 12, 2016 | Mass Device
By Brad Perriello
A jury in Philadelphia this week reportedly docked Johnson & Johnson (NYSE:JNJ) subsidiary Ethicon $13.5 million in the 2nd case involving its pelvic mesh products to go to trial in a mass tort in The City of Brotherly Love. -
Philly Pelvic Mesh Verdicts Spell Trouble For J&J
Feb 11, 2016 | Law360
By Dan Packel
After two consecutive jury verdicts exceeding $12 million in the first pelvic mesh cases tried in Philadelphia, Johnson & Johnson may think seriously about settling roughly 150 cases remaining in the jurisdiction’s mass tort program and focusing on the much larger federal multidistrict litigation, experts say. -
Jersey Woman Awarded $13.5M in Pelvic Mesh Verdict
Feb 11, 2016 | The Philadelphia Inquirer
By Chris Mondics
A woman who said she was severely injured by surgically implanted vaginal mesh was awarded $13.5 million by a Court of Common pleas jury on Wednesday, the second large verdict against medical device manufacturer Ethicon, Inc. in Philadelphia.
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Jury docks Johnson & Johnson $14m in pelvic mesh lawsuit
Feb 12, 2016 | Mass Device
By Brad Perriello
A jury in Philadelphia this week reportedly docked Johnson & Johnson (NYSE:JNJ) subsidiary Ethicon $13.5 million in the 2nd case involving its pelvic mesh products to go to trial in a mass tort in The City of Brotherly Love.
The jury in the Philadelphia Court of Common Pleas awarded plaintiff Sharon Carlino $3.5 million in compensatory damages and $10 million in punitive damages, finding that the Ethicon transvaginal polypropylene tape implanted during a 2005 hysterectomy was defective and that the company failed to adequately warn of its risks, The Legal Intelligencer reported. Carlino eventually needed 3 revision surgeries to remove the eroded mesh.
In December 2015, a jury in the same court added $7 million in punitive damages to the $5.5 million in compensatory damages it leveled against Ethicon in the 1st of the mass tort cases to go to trial in Philly.
Carlino’s attorney, Shanin Specter, said the family is thankful for the verdict.
“We hope Johnson & Johnson undertakes a bottom-up review of their conduct in vaginal mesh,” Specter said, according to the newspaper.
“We have strong grounds for appeal,” Ethicon spokeswoman Samantha Lucas said in prepared remarks, the paper reported. “We believe the evidence showed Ethicon’s TVT midurethral sling was properly designed and labeled, Ethicon acted appropriately and responsibly in the research, development and marketing of the product, and TVT was not the cause of the plaintiff’s continuing medical problems.”
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Philly Pelvic Mesh Verdicts Spell Trouble For J&J
Feb 11, 2016 | Law360
By Dan Packel
After two consecutive jury verdicts exceeding $12 million in the first pelvic mesh cases tried in Philadelphia, Johnson & Johnson may think seriously about settling roughly 150 cases remaining in the jurisdiction’s mass tort program and focusing on the much larger federal multidistrict litigation, experts say.
On Wednesday, a jury hit J&J unit Ethicon Inc. with a $13.5 million verdict, which included $10 million in punitive damages, over a transvaginal tape product. This followed a $12.5 million jury verdict in December, including $7 million in punitives, over the company’s Prolift implant.
“Seeing two cases in a row producing a verdict in excess of $10 million, including substantial compensatory and punitive damages, is a trend that’s worrying for Ethicon,” Kennerly Loutey LLC attorney Max Kennerly told Law360.
J&J and Ethicon are defendants in the majority of the 177 cases currently listed in the Philadelphia County Court of Common Pleas pelvic mesh mass tort. These are included in the approximately 44,400 pelvic mesh suits the company faces nationwide, a figure that comes from the company’s most recent U.S. Securities and Exchange Commission filing. These cases are concentrated in the seven MDLs pending in West Virginia federal court, which together house more than 70,000 cases.
The implants are used widely to treat conditions including stress urinary incontinence and pelvic floor prolapse. But the plaintiffs have contended that the mesh pores are too small, leading to excessive scar tissue growth, and that the mesh is difficult to remove if it does not work properly.
Sharon Carlino, the recipient of Wednesday’s $13.5 million award, alleged that the transvaginal tape left her with near constant pain and discomfort and an inability to have sex.
Kennerly noted that she was able to land a sizable jury verdict even without a exceptional case.
“She didn’t have extraordinary injuries or a constellation of surgeries afterward,” he said. “It was a pretty standard implant problem, then partial excision, then continuing problems. I wouldn’t be surprised if there were thousands of cases virtually identical to hers out there.”
Even without shocking circumstances, the women bringing these cases can be very sympathetic plaintiffs, according to Duane Morris LLP partner Alan Klein.
“They had surgery in a sensitive area. They trusted their doctors to implant this device, and it didn’t work,” he said. “It’s not like a soft tissue injury. It’s an injury that is objectively discernable.”
While pelvic mesh defendants have had success elsewhere — in Missouri, a state jury found Boston Scientific and C.R. Bard not liable in a woman's $28 million suit over the companies' Solyx and Align devices — the plaintiffs have been able to prevail in Philadelphia thanks to Shanin Specter of Kline & Specter PC, the firm founded by the “best plaintiffs lawyers in the city” in Klein’s estimation.
“Soon, Shanin Specter is going to be able to do this in his sleep,” Kennerly said. “It’s going to become a trial in a box. And anyone else who tries these will have a nice, packaged, clean argument — openings, cross-examinations and closings that work really well.”
These realities suggest that J&J would be well-served by settling the suits that remain in Philadelphia and turning its attention to the MDL. The company has not been averse to avoiding some trials, including a Philadelphia case that had been scheduled for Feb. 22.
"From time to time, we have appropriately agreed to resolve some cases. However, we will not discuss the terms nor discuss our ongoing litigation strategy,” J&J spokesman Ernie Knewitz said in a statement.
But other factors militate against a swift resolution in Philadelphia. Kline & Specter also represents plaintiffs in the Philadelphia mass tort and will still be eager to litigate or pursue generous settlements in that forum. So will other lawyers, who, Kennerly says, would be “emboldened” by any sign of capitulation.
“Even if [a settlement is] confidential, no one is going to assume they’re closing it for $5,000 a case,” he said.
The next case on the schedule in Philadelphia is for November, after Kline & Specter withdrew as counsel for a case pegged for April.
To turn the course of the litigation in its favor, J&J is likely looking for one of two developments in its appeals of both Philadelphia verdicts, according toCozen O'Connor PC partner James Heller. The first would be a defense verdict that gives it more leverage in any negotiations. The second would be a decision — ideally from an appellate court — that some of the evidence presented by the plaintiffs was inadmissible.
In any case, Heller said he would be surprised if there was not another trial in the mass tort.
“Two cases is not enough to throw up a white flag,” he said.
Heller added that the jury in the Carlino case seemed especially sympathetic to arguments that there was evidence of the transvaginal tape having failed in the past. The admission of this evidence depended on a court ruling that these prior occurrences were comparable to Carlino’s experience, but J&J will likely argue on appeal that this evidence shouldn't have been let in, he noted.
“They are going to argue on appeal that these prior issues or injuries aren’t substantially similar,” he said.
Any settlement decisions by the company will also depend on its internal valuation of the two cases already tried — whether it viewed them as matters that could be defended easily or whether it expected losses.
But a decision to soldier on in pursuit of a landscape-altering victory would have its risks.
“The more and more cases that you get where there’s plaintiffs’ verdicts of $12 million and $13 million or some large dollar amount, the harder it is to settle it cheap, either as a group or individually,” Heller said.
The cases are Carlino et al. v. Ethicon Inc. et al., case number 130603470, and Hammons v. Ethicon Inc. et al., case number 130503913, in the Court of Common Pleas of the State of Pennsylvania, County of Philadelphia. -
Jersey Woman Awarded $13.5M in Pelvic Mesh Verdict
Feb 11, 2016 | The Philadelphia Inquirer
By Chris Mondics
A woman who said she was severely injured by surgically implanted vaginal mesh was awarded $13.5 million by a Court of Common pleas jury on Wednesday, the second large verdict against medical device manufacturer Ethicon, Inc. in Philadelphia. Sharon Carlino, 58, of Toms River, N.J. sued Ethicon following surgery in 2005 to implant vaginal mesh to treat urinary incontinence. She said she suffered sharp pains as a consequence of the procedure and underwent two attempts at corrective surgery without success. In December, a separate jury in Philadelphia awarded an Indiana woman $12.5 million who also had mesh implant surgery and suffered chronic pain afterwards. Nationally, tens of thousands of lawsuits have been filed against vaginal mesh manufacturers who say the implants have caused severe and life altering pain.
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