Thursday, August 20, 2015

$3M Ethicon Mesh Bellwether Verdict Upheld

Law360, New York (August 19, 2015, 4:18 PM ET) --

 A West Virginia federal judge refused to throw out a $3.27 million jury verdict against Johnson & Johnson unit Ethicon Inc. in a bellwether pelvic mesh implant suit on Wednesday, saying the evidence at trial was sufficient to support the verdict.

U.S. District Judge Joseph R. Goodwin picked apart Ethicon's arguments in its motion for judgment as a matter of law, or alternately for a new trial. The judge found the plaintiffs had brought sufficient evidence that Ethicon failed to warn Jo Huskey’s doctor of certain risks implicit in implanting the company's TVT-O polypropylene mesh product, and even stronger evidence that there were defects in the product's design.

“I decline to disturb the jury’s verdict in this case because, as explained below, a reasonable jury could find in favor of the plaintiffs on each of their claims,” Judge Goodwin said. “The evidence on the defective design claim is particularly strong and is capable of upholding the verdict on its own.”

Huskey sued Ethicon in 2012, claiming the polypropylene mesh in her TVT-O sling eroded, causing her severe, ongoing pain as the mesh could not be entirely removed through surgery. Her husband, Allen, also sued for loss of consortium.

The suit was the first bellwether case to go to trial in the massive multidistrict litigation against Ethicon over its mesh implants. The trial concluded on Sept. 5, with the jury deliberating for about three hours before returning its compensatory damages verdict.

In its renewed motion for judgment as a matter of law, which the judge said he had deferred ruling on during the trial, Ethicon argued against the failure to warn claim, saying Huskey's doctor testified she would use the TVT-O again.

But the judge shot that argument down, pointing to the doctor's testimony that she would not have implanted the device in Huskey had she known it carried a higher risk of causing pain in physically active women.

The judge also ruled that Huskey had presented “significant evidence” of the risks of the device, such that a reasonable jury could find that the risks outweighed the device's benefits, a major pillar of the design defect claim.

Ethicon argued that the design defect claims were barred by a product liability doctrine known as “comment k,” which holds some products, such as vaccines, are unavoidably unsafe though not unreasonably dangerous given the harm they are meant to abate. The company also argued that the jury should have been instructed to use the criteria in its consideration.

Pointing to his earlier consideration of the doctrine in another mesh case, the judge said thatcomment K is redundant under Illinois law, which was applied in the case because Huskey is an Illinois resident. Like West Virginia, the state has adopted a risk-utility standard for weighing whether a product was defective. That standard was incorporated into the jury instructions, the judge said.

Knives, gasoline and even fondue pots carry some level of risk, the judge said. These products can be found defective by balancing their intended utility against the inherent risks of using them, and medical products are no different, the judge said.

“The TVT-O is not unique simply because it is a prescription medical device,” Judge Goodwin held. “Rather, the medical benefits and side effects are factors for the jury to consider in weighing the product’s risks against its utility”

Judge Goodwin was not swayed by Ethicon's argument that it should get a new trial because the weight of the evidence was in its favor and the court had undermined the company's success by allowing prejudicial evidence. Ethicon had not shown there were “exceptional circumstances” or “grievous error” that warranted overruling the jury, the judge said.

Edward Wallace of Wexler Wallace LLP, who represents the Huskeys, told Law360 plaintiffs counsel are “very happy” for the couple and hope the ruling drives home the importance of the verdict.

“The bellwether process is designed to give the parties an understanding of the value of their claims. That should mean something to Ethicon,” Wallace said.

Matthew Johnson, director of communications at Ethicon, said the company now plans to appeal the judgement.

“The evidence showed the TVT-O 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.”

Huskey is represented by Edward A. Wallace and Mark R. Miller of Wexler Wallace LLP, Fidelma L. Fitzpatrick of Motley Rice LLC, and Thomas P. Cartmell and Jeffrey M. Kuntz ofWagstaff & Cartmell LLP.

Ethicon and J&J are represented by Christy D. Jones of Butler Snow O'Mara Stevens & Cannada PLLC and David B. Thomas of Thomas Combs & Spann PLLC.

The case is Huskey et al. v. Ethicon Inc. et al., case number 2:12-cv-05201, in the U.S. District Court for the Southern District of West Virginia.

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