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J&J, Bard Trial Settlements Show Mesh MDL's Growing Pains
Mar 12, 2015 | Law 360
By Sindhu Sundar
Johnson & Johnson's recent move to settle a Prolift mesh suit midtrial is the latest settlement in the handful of cases selected for trial so far in the massive multidistrict mesh litigation... -
Experts Limited To 3 In Bard Pelvic Mesh Cases
Mar 12, 2015 | Law 360
By Emily Field
...In the MDL against Johnson & Johnson unit Ethicon Inc., Judge Goodwin last month scheduled a trial for July 13 in a case by plaintiff Tonya Edwards, who targeted its Gynecare TVT Obturator, TVT-O device... -
J&J boosts CEO pay to $25M, doubles R&D chief's haul
Mar 12, 2015 | Fierce Pharma
By Tracy Staton
...But the company is still embroiled in litigation over alleged failures to warn about serious side effects of products such as the antipsychotic Risperdal, the now-notorious vaginal mesh devices, and DePuy's even more notorious artificial hips...
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J&J, Bard Trial Settlements Show Mesh MDL's Growing Pains
Mar 12, 2015 | Law 360
By Sindhu Sundar
Johnson & Johnson's recent move to settle a Prolift mesh suit midtrial is the latest settlement in the handful of cases selected for trial so far in the massive multidistrict mesh litigation, but experts say such deals by J&J and fellow defendant C.R. Bard Inc. are signs of a relatively young MDL’s growing pains rather than harbingers of any larger settlements.
J&J unit Ethicon Inc. settled the case by plaintiff Dianne M. Bellew this month, five days into a trial over its Prolift device. This settlement was announced the day after Ethicon was hit with a $5.7 million verdict in California state court in a trial that involved a TVT Abbrevo pelvic mesh device. However, attorneys involved in the litigation did not comment on the reason for the decision.
The MDL over mesh devices, which has been going on for about four years in West Virginia federal court, involves defendants including Boston Scientific Corp., Bard and Ethicon and tens of thousands of cases. But only about nine cases so far have been selected for trial, and many of them have settled before the trial could begin. In February, Bard indicated its plans to settle a case by plaintiff Debra Wise right before a trial over its Avaulta Plus devices was set to begin, according to court documents.
Attorneys say it's not uncommon for cases to settle before trial, as the prospect of a trial forces both parties to confront the strength of their planned arguments and assess whether a deal might not be a safer option. Sometimes the individual settlement of certain cases can portend a larger “inventory settlement,” where a company uses one settlement with a plaintiffs' attorney to pave the way for resolution of the entire inventory of cases filed by that attorney.
But that dynamic is not necessarily in play here, observers say. In the mesh litigation, the parties had some say in the selection of trial cases, but U.S. District Judge Joseph Goodwin made the final call. So, attorneys say, it could simply be that neither the plaintiffs nor the defendants were eager to try many of the particular cases selected — meaning that others may still be headed for trial.
“It may take a few more selections before they find one that both sides believe they can win,” said Peter Goss of Blackwell Burke PA. “[Or] the cases that get tried are the ones where both sides feel they have a more or less even chance of winning or losing.”
Ethicon’s decision to settle its case in the middle of the trial is a bit unusual but not wholly unexpected, given that often in litigation, teams of lawyers can simultaneously be engaged in settlement talks even while a separate set of attorneys is trying the case, attorneys say.
“There are many variables as to why companies settle litigation such as this, and the timing of such settlements,” said Alan Klein of Duane Morris LLP.
“Those variables include the bench strength of one’s adversary ... the composition of the empaneled or prospective jury, available insurance coverage and carrier demands and preferences, the company’s defenses, and its prior knowledge of the risks from the implanted pelvic mesh product,” he said.
Even in these early bellwether cases, defendants do face some pressure to settle, attorneys say. Plaintiffs' attorneys in the cases note that more than half the cases that have gone to trial since 2014, including those in state court, have resulted in plaintiff verdicts, a factor that defendants may consider when crafting their litigation strategy.
In addition, Judge Goodwin made some controversial remarks in December indicating he thought Bard should settle the mesh cases in light of its potential liability in the litigation. Federal judges often nudge the parties toward settling, so Judge Goodwin’s personal stance on Bard’s odds is not surprising, attorneys say. But the fact that his remarks were public are unusual and could pressure Bard to settle some cases, attorneys say.
“It can have some influence on your decision-making, but you'd never settle a large group of cases simply because of comments by the judge,” Goss said. “The hope would be that if you get a bad outcome in a trial based on a judge's comments, you could take that on appeal.”
Bard was hit earlier with a $2 million verdict in the MDL in August 2013, in a case brought by plaintiffs Donna and Dan Cisson, according to court documents.
Before trial in Bellew's case, Ethicon had faced at least two mesh trials in the MDL: Lewis v. Ethicon, the first bellwether against it, in which it won a directed verdict in February 2014, and Huskey et al. v. Ethicon, in which the plaintiff won a $3.3 million verdict.
So far, no trials are scheduled in the Bard litigation, while one trial in the Ethicon litigation is expected to take place in July, according to court documents. Judge Goodwin is expected to schedule more trials in the coming weeks. -
Experts Limited To 3 In Bard Pelvic Mesh Cases
Mar 12, 2015 | Law 360
By Emily Field
A West Virginia federal judge on Thursday told plaintiffs in C.R. Bard Inc.’s pelvic mesh injury litigation consolidated in federal court that they were limited to three expert witnesses per case as previously ordered.
U.S. District Judge Joseph R. Goodwin granted Bard’s motion to strike the disclosures of the witnesses, saying that a pre-trial order was issued in July limiting the experts to three. The judge rejected the plaintiffs’ argument that the limitations might prevent them from carrying their burden of proof if an expert isn’t available or is excluded. The judge ordered the plaintiffs to disclose their experts again in compliance with the order.
“I have made clear to the parties that it is my intention to quickly work up these cases for trial and remand them to the appropriate districts for trial — indeed, this is my duty under 28 U.S.C. § 1407,” the judge said.
According to the judge, the plaintiffs had argued that they don’t intend to call duplicative witnesses at trial but they might need more than three, “i.e. a pathologist, a materials expert, a causation expert (uro-gynecologist, gynecologist, or urologist) and a specialist, such as a pelvic pain specialist.”
The judge reminded the parties that the order contains a provision for disclosing additional experts “for good cause shown.”
“As to the plaintiffs’ fear of lack of availability of experts given the large number of remands, this issue can be taken up with the district judge who is ultimately assigned the case on transfer or remand,” the judge said. “The court will advise the assigned district judge of the limit on expert disclosures imposed by [the order].”
A total of seven MDLs have been assigned to Judge Goodwin over transvaginal surgical mesh devices used to treat pelvic organ prolapse and stress urinary incontinence.
Those MDLs contain more than 70,000 cases that are currently pending, including roughly 10,000 in the Bard MDL, according to court documents.
In the MDL against Johnson & Johnson unit Ethicon Inc., Judge Goodwin last month scheduled a trial for July 13 in a case by plaintiff Tonya Edwards, who targeted its Gynecare TVT Obturator, TVT-O device. 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.
Last year, J&J won the bellwether case case against it in the multidistrict litigation over alleged transvaginal mesh injuries, in a five-day trial that concluded when Judge Goodwin granted the defendants’ motion for judgment.
Plaintiffs in the litigation have claimed that Bard's Avaulta devices, used in the treatment of pelvic organ prolapse or stress urinary incontinence, were prone to degrading and caused bleeding, painful sexual intercourse, bladder spasms, scarring and a host of other injuries, according to court documents.
The plaintiffs are represented by Henry G. Garrard III of Blasingame Burch Garrard & Ashley PC, among others.
Bard is represented by Lori G. Cohen and R. Clifton Merrell of Greenberg Traurig LLP and Michael K. Brown of Reed Smith LLP.
The case is In re: C. R. Bard, Inc., Pelvic Repair System Products Liability Litigation, case number 2:10-md-02187 in the U.S. District Court for the Southern District of West Virginia. -
J&J boosts CEO pay to $25M, doubles R&D chief's haul
Mar 12, 2015 | Fierce Pharma
By Tracy Staton
Johnson & Johnson ($JNJ) CEO Alex Gorsky got a multimillion-dollar pat on the back for 2014. J&J's board upped his pay package to almost $25 million, with more cash, more options, and a much bigger chunk of J&J stock.
The pay hike--almost half again as much as the $16.9 million Gorsky earned in 2013--puts his compensation on par with that of his predecessor, William Weldon, who for years was among the two or three highest-paid CEOs in the pharma business. Not that his previous tally fell far short, ranking-wise; Gorsky stood in 6th place on FiercePharma's CEO pay ranking last year.
J&J's board explained Gorsky's pay with a rundown of the ways the company met or beat its goals for last year. Earnings growth, check. Ditto for sales growth, particularly in pharma, but Gorsky's team also pulled off revenue and cost-cutting goals in its devices business, still digesting the Swiss orthopedics specialist it bought in 2011, Synthes. On the softer side of things, Gorsky grew J&J's stable of up-and-coming executives, won good grades internally for employee relations and helped polish its public image, the board's compensation committee said in J&J's proxy statement.
J&J has had a good run in prescription drugs, with a series of successful rollouts and a whopping 16% growth in sales for 2014. About a quarter of J&J's 2014 sales came from products launched since 2010. Devices and consumer health weren't quite as successful last year, but the company did pull off $74 billion in sales overall, a 4.2% increase.
As for J&J's rep? The board pointed out its ranking among Barron's most-respected companies and Fortune's most-admired companies lists. And it's true that J&J's McNeil unit has recovered somewhat from the disastrous series of recalls that began in 2009. But the company is still embroiled in litigation over alleged failures to warn about serious side effects of products such as the antipsychotic Risperdal, the now-notorious vaginal mesh devices, and DePuy's even more notorious artificial hips.
J&J has paid billions to settle lawsuits filed by consumers and government officials alike, and though it has successfully fought off billion-dollar-plus verdicts in certain state-court cases, the headlines haven't been pretty. And it wasn't so long ago that J&J agreed to shell out $2.3 billion to settle a long-standing investigation by the U.S. Justice Department, over a litany of alleged marketing violations, off-label and otherwise.
But then again, shareholder returns were 17%, as the proxy points out.
Gorsky's salary is about on par with his pharma peers at $1.5 million, and he doesn't collect any straight bonus pay. Incentive pay ticked slightly above $5 million, a 3% increase over 2013's $4.87 million. The big differences over 2013 came in stock awards--$9.47 million, up from $5.99 million--and options, which amounted to $4.17 million, up from $2.67 million. Plus, Gorsky saw his pension and deferred compensation grow by $4.6 million, more than twice the increase recorded for 2013. Total: $24.99 million.
Gorsky wasn't the only J&J exec to enjoy a big hike in stock awards, either. Paul Stoffels, the company's chief science officer and worldwide pharma chairman, netted $10.69 million in shares. That award, together with a sizable pension boost, more than doubled Stoffels' pay for the year, bringing his total to $18.34 million. For 2013, Stoffels' compensation totaled $7.82 million.
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