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J&J, Ethicon Lose Bid To Toss $5.7M Pelvic Mesh Verdict
May 4, 2015 | Law360
By Emily Field
Johnson & Johnson’s Ethicon Inc. unit won’t get a shot at a new trial after a $5.7 million jury verdict in favor of a California woman who claimed that she was injured by the company's pelvic mesh product. -
Arnold & Porter Partners Form Mass Tort Firm In DC, LA
May 4, 2015 | Law360
By Joe Van Acker
...Greene and Reisman were also recently appointed special masters in other pelvic-mesh MDLs, RKG said...
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J&J, Ethicon Lose Bid To Toss $5.7M Pelvic Mesh Verdict
May 4, 2015 | Law360
By Emily Field
Johnson & Johnson’s Ethicon Inc. unit won’t get a shot at a new trial after a $5.7 million jury verdict in favor of a California woman who claimed that she was injured by the company's pelvic mesh product.
Kern County Superior Court Judge Lorna H. Brumfield on April 27 denied Ethicon’s motion for a new trial after a jury awarded plaintiff Coleen Perry $700,000 in compensatory damages and $5 million in punitive damages for injuries from her TVT Abbrevo mesh in early March. Judge Brumfield rejected Ethicon’s argument that it was entitled to a new trial because Perry had rebutted the company’s assertions that its TVT line of products were the “gold standard” and still on the market.
“By attributing longevity to the ‘TVTTM line’ of products as a whole, and selecting three devices from the TVT family to discuss (while omitting the troubled history of the de-commercialized TVT-Secur), Ethicon created a skewed image of the history of the TVT products,” the judge said. “It was not error to allow plaintiff to rebut false impressions by introducing evidence of a decommercialized TVT product.”
According to the judge, while the TVT-Secur is a different design, it was made of the same mesh and there was evidence of similar complications.
The judge also rejected Ethicon’s argument that a new trial was warranted because of testimony on other suits involving the pelvic mesh products.
Perry’s attorneys had agreed not to bring up other litigation as long as Ethicon didn’t imply that the millions of women implanted with TVT slings are satisfied with the product, according to the judge.
But one of Ethicon’s expert witnesses, Douglas Grier, gave unsolicited testimony that all 1.5 million women with the TVTTM slings were “doing well.”
“This testimony from Dr. Grier opened the door for impeaching evidence that women were not all satisfied and doing well,” the judge said. “Plaintiff was only allowed to make a limited inquiry of Dr. Grier whether he was aware that more than 12,000 women have made claims against Ethicon because of complications from their TVT mesh slings.”
The judge also rejected Ethicon’s argument that it was entitled to a new trial on the issue of punitive damages, saying that the $5 million award wasn’t grossly excessive in relation to the company's financial condition — according to the judge, its net worth is $27 billion — or in relation to the compensatory damages.
"We obviously are pleased with the trial court’s ruling and we certainly belive that its supported by the record," Tim Goss of Freese & Goss PLLC, attorney for Perry, told Law360 on Monday. "We also anticipate that it will be upheld by the California appellate courts."
Judge Brumfield similarly denied Ethicon’s motion for judgment notwithstanding the verdict, saying that there is substantial evidence supporting the jury's conclusion.
Ethicon spokesman Matthew Johnson told Law360 on Monday the company is planning on filing an appeal.
"The evidence showed the TVT Abbrevo midurethral sling was properly designed and Ethicon acted appropriately and responsibly in the research, development and marketing of the product," Johnson said. "We empathize with all women suffering from stress urinary incontinence, which can be a serious and debilitating condition, and we are always concerned when a patient experiences adverse medical events."
Tens of thousands of plaintiffs have sued pelvic mesh-makers over complications with the products, alleging the mesh, which is placed in women to manage stress urinary incontinence and pelvic organ prolapse, is responsible for a litany of injuries.
Shortly after Perry’s verdict, Ethicon Inc. settled a bellwether case in multidistrict litigation over transvaginal mesh injuries on the fifth day of trial. Details of the deal weren’t disclosed.
The suit was in one of seven massive MDLs assigned to U.S. District Judge Joseph R. Goodwin concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse and stress urinary incontinence, court filings said. More than 70,000 cases were consolidated into the MDLs.
In West Virginia, a federal jury hit Ethicon with a $3.3 million verdict in September over its TVT-O transvaginal sling, finding in favor of plaintiff Jo Huskey on all counts, including strict liability, design defect, failure to warn and negligence.
Other companies, such as Boston Scientific Corp. and C.R. Bard Inc., that make pelvic mesh products have also been hit with big-dollar verdicts by juries that sided with the plaintiffs who complained of erosion of the mesh that caused severe pain and necessitated more surgeries, among other injuries, court records show.
But Ethicon has had some success in the pelvic mesh litigation. On March 2, the Fourth Circuit refused to undo the company’s win in multidistrict litigation, finding that plaintiff Carolyn Lewis hadn’t sufficiently shown that a different warning by Ethicon as to the TVT’s alleged risks would have changed her doctor’s decision to prescribe the device.
Coleen Perry is represented by Richard Freese, Tim Goss and Calle Mendenhall of Freese & Goss PLLC, Tom Cartmell of Wagstaff & Cartmell LLP, Stewart R. Albertson ofAlbertson & Davidson LLP and Peter de la Cerda of Edwards & de la Cerda PLLC.
The defendants are represented by William Gage, Burt Snell and Harold T. Pinkley ofButler Snow PLLC, Kim Schmid of Bowman and Brooke LLP and Joshua J. Wes and Su Lin of Tucker Ellis LLP.
The case is Perry et al. v. Luu et al., case number S-1500-cv-279123, in the Superior Court of the State of California, County of Kern. -
Arnold & Porter Partners Form Mass Tort Firm In DC, LA
May 4, 2015 | Law360
By Joe Van Acker
Three attorneys from Arnold & Porter LLP’s product liability practice announced Monday that they have left to form Reisman Karron Greene LLP, a boutique law firm focusing on mass tort claims and other complex litigation.
Ellen Reisman, Ethan Greene and Andrew Karron, the latter of whom will serve as managing partner at the new firm, said they are joined by six other Arnold & Porter attorneys and that RKG will have offices in Washington, D.C, and Los Angeles, where the firm will open its doors later in May.
“We all have spent many years working with talented lawyers committed to providing outstanding legal service to clients facing difficult problems,” Karron said in a statement. “We plan to build on that tradition of legal excellence at RKG with our team of dedicated, imaginative and diverse lawyers.”
Karron noted that of RKG’s nine attorneys, seven are women and four are minorities, and said he appreciated their confidence that the firm is dedicated to equality.
The founding partners have considerable experience with mass torts — all three represented BP PLC in an MDL stemming from the Deepwater Horizon disaster and are currently serving as national settlement counsel to Endo Pharmaceuticals Inc. in multidistrict litigation over pelvic mesh.
Greene and Reisman were also recently appointed special masters in other pelvic-mesh MDLs, RKG said.
RKG attorneys have previously defended clients against personal injury and economic loss claims related to environmental incidents and pharmaceuticals, including the diet drug fen-phen, according to a statement from the firm.
In addition to handling tort claims, Karron has counseled clients targeted by enforcement actions and investigations by the U.S. Securities Exchange Commission, Department of Justice and federal banking regulators, according to Arnold & Porter.
Reisman, who served as in-house counsel for Pfizer Inc. subsidiary Wyeth LLC before becoming a senior partner in Arnold & Porter’s product liability litigation group in Los Angeles, has continued to focus her practice on the medical industry, representing pharmaceutical, medical device and biotech companies for the past 30 years, RKG said.
“Our small size and focus will allow us to undertake settlement work in high-risk cases efficiently and effectively, both for corporate clients and as court-appointed neutrals,” Reisman said in a statement. “We are fortunate to have the opportunity to continue to work with a team of talented, creative lawyers who know how to negotiate and implement innovative mass tort settlements.”
While he was with Arnold & Porter, Greene also worked on the medical side of product liability and environmental mass tort cases, consulting with experts, deposing witnesses and defending pharmaceutical companies at the state and federal levels, according to his former firm.
Greene also served as one of the lead negotiators for BP in a class action settlement of medical claims stemming from exposure to crude oil and other chemicals, and his pro bono work has included filing amicus briefs before the U.S. Supreme Court on First Amendment issues as well as helping clients obtain Social Security disability benefits, according to Arnold & Porter.
“We believe that we can provide valuable services to both plaintiffs’ counsel and defendants who seek to comply with applicable secondary payer laws, and, at the same time, work efficiently to maximize the funds available to claimants in mass tort settlements,” Green said in the RFK statement.
Representatives for Arnold & Porter didn’t immediately respond to a request for comment.
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