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Ethicon Media Monitoring 5/24/2019
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Mesh Injuries Prompt $80 Million Award to Philadelphia Woman
May 23, 2019 | DrugWatch.com
By Terry Turner
Jurors handed down an $80 million verdict to a Pennsylvania woman injured by transvaginal mesh used to treat her pelvic organ prolapse. -
Jury Awards $80M to Woman Injured by Eroded Pelvic Mesh
May 23, 2019 | The Legal Intelligencer
By Max Mitchell
...A Philadelphia jury has awarded more than $80 million to a woman who claimed a pelvic mesh device developed by a Johnson & Johnson subsidiary eroded and caused injury. -
Law360's Weekly Verdict: Legal Lions & Lambs
May 23, 2019 | Law 360
By Aebra Coe
...A slew of attorneys at seven law firms ended up on the lambs list Friday when a Philadelphia jury returned $80 million in damages against their client, Johnson & Johnson unit Ethicon, in the latest trial over chronic pain and other complications caused by its pelvic mesh implants. -
Ohio Court Revives Suit Against Doc Over Foreign Object
May 23, 2019 | Law 360
By Y. Peter Kang
An Ohio appeals court on Thursday revived a suit accusing a urologist of negligently leaving a gauzelike material inside a man following hernia repair surgery that purportedly caused an infection and other injuries, saying a factual dispute exists as to whether the gauze can be considered a foreign object. -
Hernia Mesh Secrets: Bruce Rosenberg Advises First Time Hernia Repair Patient
May 23, 2019 | Mesh Medical Device News Desk
By Bruce Rosenberg
Bruce is a patient advocate who receives thousands of calls from patients seeking answers about their hernias.
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Mesh Injuries Prompt $80 Million Award to Philadelphia Woman
May 23, 2019 | DrugWatch.com
By Terry Turner
Jurors handed down an $80 million verdict to a Pennsylvania woman injured by transvaginal mesh used to treat her pelvic organ prolapse. The award includes $50 million in punitive damages to be paid by Johnson & Johnson subsidiary Ethicon. The jury found Ethicon failed to properly warn people of the risks its mesh posed.
Patricia Mesigian’s lawsuit claimed the Prolift mesh eroded after her 2008 surgery to implant it. She required multiple surgeries in later years as the mesh caused pain, inflammation and infections, according to her complaint.
Mesigian’s attorney, Thomas Kline, said in a statement that the jury award recognized “not only the severity of the injury but the abhorrence of the conduct” by Ethicon.
Johnson & Johnson issued a statement saying the jury’s decision was “inconsistent with the science” and promised to appeal.
Transvaginal mesh, also called pelvic or urogynecologic mesh, is a surgical mesh used to treat pelvic organ prolapse and stress urinary incontinence in women. It was designed to reinforce a weakened vaginal wall in prolapse cases and to support the urethra or portions of the bladder in urinary incontinence patients. But tens of thousands of women have blamed it for severe complications.
The U.S. Food and Drug Administration stopped sales of transvaginal mesh in April 2019. Only two companies, Boston Scientific and Coloplast, were still marketing the mesh in the United States at the time. The FDA had reclassified mesh used to treat pelvic organ prolapse as a high-risk device in 2016.
Verdict Follows Other Philadelphia Jury Awards for Mesh Injuries
The verdict was the eighth time a Philadelphia court has sided with women suing Ethicon for mesh injuries. This latest jury award brings the total judgments so far to more than $346 million.
Mesigian’s case came just a month after another Philadelphia jury awarded $120 million to a woman implanted with Ethicon mesh to treat urinary incontinence. That verdict included $100 million in punitive damages.
Ethicon has won two pelvic mesh cases in Philadelphia, one in June 2017 and another in April 2019. But a judge later overturned the 2017 verdict and ordered a new trial. It is still tied up in appeals.
Ethicon Faces More than 29,000 Other Mesh Lawsuits
Johnson & Johnson reported in a May 2019 financial filing that the company faced 29,500 transvaginal mesh lawsuits. This would include 7,711 lawsuits remaining in a federal litigation in West Virginia as of May 15, 2019. Other cases, including more than 80 lawsuits in Philadelphia alone, are pending in state courts.
Ethicon is one of six mesh manufacturers involved in mass litigations over its product. More than 107,000 transvaginal mesh lawsuits have been filed against the companies. That includes 40,727 lawsuits against Ethicon, the most of any manufacturer. Mesh makers are paying roughly $8 billion to settle the cases in the litigation.
Ethicon also faces mesh lawsuits in other countries, including the United Kingdom, Canada, Australia, Israel and Belgium.
The company agreed to settle a consumer lawsuit filed by the state of Washington for $9.9 million in April 2019. The state’s attorney general claimed in the suit that Ethicon failed to disclose risks associated with the mesh.
https://www.drugwatch.com/news/2019/05/23/mesh-injuries-prompt-80-million-award-to-philadelphia-woman/
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Jury Awards $80M to Woman Injured by Eroded Pelvic Mesh
May 23, 2019 | The Legal Intelligencer
By Max Mitchell
Mesigian v. Ethicon$80M Verdict
Date of Verdict: May 17.
Court and Case No.: C.P. Philadelphia No. 140200399.
Judge: Daniel Anders.
Type of Action: Products liability, personal injury.
Injuries: Pain, infections, inflammation and scar tissue.
Plaintiffs Counsel: Thomas R. Kline, Kila Baldwin and Michael Trunk, Kline & Specter, Philadelphia.
Defense Counsel: Katherine Gallagher, Beck Redden; Rebecca Bacon, Bartlit Beck; John Hare, Marshall Dennehey Warner Coleman & Goggin; Alicia Hickok of Drinker Biddle & Reath.
Comment:
A Philadelphia jury has awarded more than $80 million to a woman who claimed a pelvic mesh device developed by a Johnson & Johnson subsidiary eroded and caused injury.
The verdict, which came down Friday afternoon in front of Philadelphia Court of Common Pleas Judge Daniel Anders, totaled $80.025 million for plaintiffs Patricia and George Mesigian of Media, Pennsylvania. The award also included $50 million in punitive damages, and came down a little more than a month after another Philadelphia jury slammed the same J&J subsidiary, Ethicon, with a $120 million verdict.
Patricia Mesigian’s trial team was led by Kline & Specter attorneys Thomas R. Kline, Kila Baldwin and Michael Trunk.
In a statement released after the verdict, Kline said the company had put profits before patient safety.
“In this largest transvaginal compensatory jury verdict to date, this jury resoundingly found that Johnson & Johnson terribly injured another one of thousands of women implanted with its defective transvaginal mesh device, recognizing not only the severity of the injury but the abhorrence of the conduct,” Kline said.
According to the plaintiffs’ counsel, Mesigian, now 75, had the mesh implanted in 2008 to treat organ prolapse, but the product eroded, leaving her with significant pain, infections, inflammation and scar tissue that caused pain during sex and required several revision surgeries.
Mesigian, along with more than 80 plaintiffs with cases currently pending in Philadelphia’s Complex Litigation Center, alleged that J&J subsidiary Ethicon failed to adequately warn about the erosion rate of the device, and instead misled the medical community about the product’s safety.
The verdict marks the eighth time a Philadelphia jury has awarded a woman significant compensatory and punitive damage awards over pelvic mesh products. According to a statement from Kline & Specter, the awards now total $346 million.
Ethicon has won two defense verdicts in the litigation, with the latest coming in mid-April. The first defense win, however, was later reversed by the trial court, after the judge who oversaw the case determined that the jury’s findings were inconsistent on the issue of whether the alleged design defect caused the injuries. The judge ultimately determined that the case should proceed to a damages hearing, but that decision is currently on appeal to the Pennsylvania Superior Court.
Defense counsel included Katherine Gallagher of Beck Redden, Rebecca Bacon of Bartlit Beck, John Hare of Marshall Dennehey Warner Coleman & Goggin and Alicia Hickok of Drinker Biddle & Reath.
https://www.law.com/thelegalintelligencer/2019/05/23/jury-awards-80m-to-woman-injured-by-eroded-pelvic-mesh/
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Law360's Weekly Verdict: Legal Lions & Lambs
May 23, 2019 | Law 360
By Aebra Coe
WilmerHale nabbed this week’s top legal lion honor with a U.S. Supreme Court win in a trademark case for a sports apparel retailer, while Norton Rose Fulbright was among the week’s legal lambs as a result of a crushing antitrust defeat in federal court for client Qualcomm.
Legal Lions
WilmerHale secured the top legal lion title on Monday with a win for sports apparel retailer Mission at the U.S. Supreme Court. The court ruled that defunct brand-owning companies cannot use bankruptcy law to unilaterally revoke a trademark license, settling a circuit split that had been called "the most significant unresolved legal issue in trademark licensing.” Mission was represented by Danielle Spinelli of WilmerHale.
The families of terror attack victims do not have to have been present at the incident to sue for emotional distress, the D.C. Circuit ruled Tuesday, keeping Sudan on the hook for billions of dollars in damages related to two deadly 1998 al-Qaida bombings. The plaintiffs are represented by Stuart H. Newberger, Clifton E. Elgarten, Aryeh S. Portnoy, Emily Alban and John L. Murino of Crowell & Moring LLP, Matthew D. McGill and Lochlan F. Shelfer of Gibson Dunn & Crutcher LLP, Steven R. Perles and Edward B. MacAllister of Perles Law Firm PC, John Vail of John Vail Law PLLC, Thomas F. Fay of Fay Law Group PA, Jane C. Norman of Bond & Norman PLLC and Michael J. Miller and David J. Dickens of The Miller Firm LLC.
Next up on this week’s lions list are attorneys from Kirkland & Ellis LLP and Holland & Hart LLP. The Supreme Court on Monday threw out a Crow Tribe member's state court conviction for crossing state lines to hunt elk in the Bighorn National Forest, ruling that the tribe's treaty right to hunt didn't end when Wyoming became a state. Crow Tribe member Clayvin Herrera is represented by George William Hicks Jr. and Andrew C. Lawrence of Kirkland & Ellis LLP and Kyle A. Gray, Steven A. Small and Hadassah Reimer of Holland & Hart LLP.
Stock car racing organization NASCAR has agreed to acquire racetrack owner International Speedway, host of the famous Daytona 500, in a $2 billion deal guided by attorneys from Baker Botts and Saul Ewing, the companies said Wednesday. International Speedway is represented by Saul Ewing Arnstein & Lehr LLP. NASCAR is represented by Jonathan Gordon, Justin Blass, John Kaercher, Tamar Stanley, Matt Donnelly, Peter Farrell, Robert Wann, Chad Davis and Robert Fowler of Baker Botts LLP.
Kellogg Hansen Todd Figel & Frederick PLLC landed a spot on the lions list Monday when the Supreme Court unanimously found that “clear evidence” means there’s evidence showing a drug company fully informed the FDA of its reasons for a label change and the FDA in turn rejected the change, teeing up further litigation in an MDL over Merck's osteoporosis drug Fosamax. The patients are represented by David C. Frederick, Brendan J. Crimmins and Jeremy S.B. Newman of Kellogg Hansen Todd Figel & Frederick PLLC.
Legal Lambs
In a big loss for attorneys at Keker Van Nest & Peters LLP, Cravath Swaine & Moore LLP and Norton Rose Fulbright, a California federal judge ruled Tuesday that client Qualcomm's decadeslong "no license, no chips" business practice violates federal antitrust laws, handing the Federal Trade Commission a win and upending how the chipmaker negotiates standard-essential patent licenses covering smartphone technology. Qualcomm is represented by Robert A. Van Nest and Justina Kahn Sessions of Keker Van Nest & Peters LLP, Antony L. Ryan, Richard J. Stark, Gary A. Bornstein and Yonatan Even of Cravath Swaine & Moore LLP and Richard Zembek, Marc Collier, Eric Hall, Daniel Leventhal and Talbot Hansum of Norton Rose Fulbright.
Next up on the legal lambs list are Consovoy McCarthy Park PLLC and Michael Best & Friedrich LLP. A D.C. federal judge ruled Monday that the law firms’ client, President Donald Trump, can't block the U.S. House of Representatives' subpoena seeking his financial records from his longtime accountant, comparing Trump's failing argument to that of former President James Buchanan, who contended Congress had no general powers to investigate him. Trump and his businesses are represented by William S. Consovoy, Cameron T. Norris and Patrick Strawbridge of Consovoy McCarthy Park PLLC and Stefan C. Passantino of Michael Best & Friedrich LLP.
A slew of attorneys at seven law firms ended up on the lambs list Friday when a Philadelphia jury returned $80 million in damages against their client, Johnson & Johnson unit Ethicon, in the latest trial over chronic pain and other complications caused by its pelvic mesh implants. Ethicon is represented by Kathleen Gallagher of Beck Redden LLP, Rebecca Bacon of Bartlit Beck LLP, Julie Callsen, Erica James and Sherry Knutson of Tucker Ellis LLP, Anita Modak-Truran, Adam Porter and Nils Burton Snell of Butler Snow LLP, John Hare of Marshall Dennehey Warner Coleman & Goggin PC, Larry Ottaway and Amy Sherry Fischer of Foliart Huff Ottaway & Bottom, and Andrew Reeve, Melissa Merk, D. Alicia Hickok and Kenneth Murphy of Drinker Biddle & Reath LLP.
Gordon & Rees LLP and Nicolaides Fink Thorpe Michaelides Sullivan LLP landed on the list Wednesday after a California federal jury found that their client, AIG subsidiary National Union, acted in bad faith when it failed to cover Yahoo Inc.’s costs to defend a consolidated class action accusing it of unlawfully scanning customers' emails. National Union is represented by Asim K. Desai and Steven R. Inouye of Gordon & Rees LLP and Matthew C. Lovell, Richard H. Nicolaides Jr. and Daniel I. Graham Jr. of Nicolaides Fink Thorpe Michaelides Sullivan LLP.
A Delaware federal jury found Thursday that three patents held by DSL technology developer TQ Delta were infringed by competitor 2Wire Inc., landing attorneys at Morgan Lewis & Bockius LLP and Goodwin Procter LLP among the week's legal lambs. 2Wire is represented by Jody C. Barillare of Morgan Lewis & Bockius LLP and Brett Schuman, Rachel M. Walsh and Monte M.F. Cooper of Goodwin Procter LLP.
https://www.law360.com/articles/1162540/law360-s-weekly-verdict-legal-lions-lambs
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Ohio Court Revives Suit Against Doc Over Foreign Object
May 23, 2019 | Law 360
By Y. Peter Kang
An Ohio appeals court on Thursday revived a suit accusing a urologist of negligently leaving a gauzelike material inside a man following hernia repair surgery that purportedly caused an infection and other injuries, saying a factual dispute exists as to whether the gauze can be considered a foreign object.
In a published decision, a three-judge Court of Appeals panel for the Eighth District unanimously reversed a summary judgment ruling in favor of Dr. Kalish R. Kedia in a suit accusing the urologist of botching a 2010 hernia surgery on Ferenc Vucsko by leaving a gauzelike material inside the patient and providing negligent follow-up treatment in 2014 and 2015.
The suit was filed in November 2016 and claims that Vucsko developed an abscess in 2014, but Kedia advised that no action was necessary. When the abscess ruptured in 2015, Vucsko claims that a gauzelike material could be seen protruding from the abscess which was removed by the doctor and thrown in the trash, where it was later retrieved by Vucsko's wife.
The Cuyahoga County judge had tossed the suit under Ohio's four-year statute of repose for medical malpractice cases. The judge found that all the claims stemmed from the 2010 surgery and no evidence was presented suggesting that Kedia negligently left a foreign object in the patient's body.
But the panel disagreed, siding with Vucsko's assertion that a factual dispute exists as to whether the gauze was a "hernia mesh" used as part of the surgery and if it can be considered a foreign object. If the latter is proven, Vucsko could qualify for an exception to the statute of repose, the court said.
"There are a number of genuine issues of material fact in dispute, including whether there was hernia mesh removed from Vucsko and, if so, whether the hernia mesh was left in Vucsko's body for sound medical reasons," the panel said in a 13-page opinion.
In addition, the panel determined that the trial judge erred by holding that Vucsko's treatment in 2014 and 2015 was related to the 2010 surgery.
"Plaintiffs' additional claims are no different from any other medical malpractice action in which it is claimed that a physician was negligent in providing follow-up care and treatment," it said. "Plaintiffs' additional claims involve separate alleged acts of negligence occurring entirely after Vucsko's 2010 surgery and relate to his follow-up care and treatment."
Representatives for the parties did not immediately respond to requests for comment Thursday.
Judges Sean C. Gallagher, Frank D. Celebrezze Jr. and Kathleen Ann Keough sat on the panel for the Eighth District.
Vucsko is represented by Eric W. Henry of The Henry Law Firm.
Kedia and his practice group, Cleveland Urology Associates Inc., are represented by Ronald A. Margolis, Brian F. Lange and Bret C. Perry of Bonezzi Switzer Polito & Hupp Co. LPA.
The case is Ferenc Vucsko et al. v. Cleveland Urology Associates Inc. et al., case number 107498, in the Court of Appeals of Ohio, Eighth Appellate District.
https://www.law360.com/articles/1162717/ohio-court-revives-suit-against-doc-over-foreign-object
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Hernia Mesh Secrets: Bruce Rosenberg Advises First Time Hernia Repair Patient
May 23, 2019 | Mesh Medical Device News Desk
By Bruce Rosenberg
Bruce is a patient advocate who receives thousands of calls from patients seeking answers about their hernias.
Rosenberg is a member of the American Hernia Society and attends their meetings, though he is not a medical doctor.
He is mesh injured and before being disabled, worked as a social worker.
“I recently got a call from Sam, a friend in Florida. He asked, “I have a small hernia. What should I do?”
I told him, as I always do, I’m not a doctor but you can do your homework and that includes understanding what are the various different alternatives to mesh? You should investigate all alternatives and see which are the most appropriate for you, individually.
That may be a tissue repair using suture.
The Alternatives
If you have a small primary hernia you may want to talk to a specialist who can take care of that with a pure tissue repair and those options are Shouldice, Bassini, McVay, and Desarda – the four well known types – and you may find a surgeon in your area who does one or you may want to travel.
One place is the Shouldice Clinic in Toronto the Gold Standardwhere Ralph Nader went, the consummate consumer advocate, so you may want to consult with these alternatives before you settle on the mesh.
Mesh is the standard of care but that doesn’t mean it’s for everybody.
Near you there is a surgeon you might consult in Fort Lauderdale, Jonathan Levine, MD, a general surgeon at Holy Cross Hospital in Fort Lauderdale who has done Shouldice repairs and Dr. Kevin Petersen in Las Vegas, he’s got five stars on Health Grades.
Sam said his was a workers’ compensation case and he was given a referral to a guy who does mesh. That doctor told him they don’t use the recalled products anymore they have a new product and it’s a new type of patch, not a mesh.
I explained to him it’s still a mesh and he’s not doing anything wrong in the sense that he’s lying to you, he’s trying to diminish the anxiety you may feel because mesh is the standard of care and it has a higher positive efficacy. We have to be honest about that. According to the FDA and manufacturers, there is at least a 70% success rate in the short-run, but at the same time he should be telling you about alternatives and giving you the choice to make an educated decision.
I explained to Sam that the doctor is not being forthcoming. I’m not saying that he’s doing that just to get your business, but the doctor should be giving you the choice of what to do. And if that means avoiding a foreign body implant that can ultimately hurt you, you should be making that choice not him. I told Sam to find out what product the doctor planned to use.
When Sam called back he said it was a 3D Max (made by Bard Davol) and the doctor told him it was made out of polypropylene.
I told Sam it’s not new. Polypropylene has been used since the 1980’s and that’s the main culprit in the majority of injuries. Sam said the doctor said the mesh is permanent, it can’t come out, but it remains soft, comfortable, and you won’t feel it. It stays that way.
I told Sam that’s not true! Polypropylene mesh is proven to degrade, migrate, wrinkle, stiffen, and turn into a meshoma you will feel for the rest of your life so I highly recommend you go for the consult (with Dr Levine).
Sam told me he couldn’t take off time from work. I repeated 3D Max has a lot of complications reported to the FDA. It’s a commonly complained about product. You can look it up on the FDA’s MAUDE database.
Do I feel he wasted my time?
Many Are Hesitant to Seek Non-Mesh Repairs
No. I understand because I went through it the same thing. I saw over 40 surgeons who all insisted on mesh and also refused to acknowledge the original mesh surgery was the cause of my pain or injuries when in the end it was proven it was.
So, for me, I wasted two years, putting up with that denial, visiting doctors who are in denial, or who otherwise enjoy the profession of putting in foreign bodies in that can potentially harm someone without informing of the potential side effects.
There is something unprofessional about that. That is not responsible medicine to do that. If the individual comes back after being educated, that’s their choice, it’s not the doctors’ fault if the person is educated.
That’s why in lawsuits you hear the question – When did you first hear mesh might be your problem? Did you do any internet searching before your repair so you might have seen this could happen, so you were informed? People don’t realize that so they ruin their own case.
So this doctor did not provide adequate informed consent in my opinion.
By his explanation – he tried to explain it away by saying I detected you were anxious about this and I wanted to diminish your anxiety, I placated you because I didn’t want you to run scared.
But that’s not his choice to make that decision. That’s the patient’s choice whether or not they want to run scared. This person has a small primary inguinal hernia so he may able to be stitched up. And if it doesn’t work out he can always get a mesh the second time."
https://www.meshmedicaldevicenewsdesk.com/hernia-mesh-secrets-bruce-rosenberg-advises-first-time-hernia-repair-patient/
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