Bakersfield, Calif. — A California state court jury socked Johnson & Johnson's Ethicon unit with a $5.7 million verdict on Thursday in a bellwether pelvic mesh trial, finding the “TVT Abbrevo” sling system was defectively designed and that the company failed to adequately warn patients and doctors of the product’s risks.

The 12-member jury returned the verdict after nearly five days of deliberations following a lengthy trial that began in January. The verdict consists of $700,000 in compensatory damages for plaintiff Coleen Perry and $5 million in punitive damages. The jury also found in favor of Perry on negligent misrepresentation claims, according to a Courtroom View Network webcast of the proceedings. 

Perry’s case is the first suit involving Ethicon’s TVT Abbrevo to go to trial and the fourth plaintiff victory against Ethicon overall. Perry claimed the Abbrevo, used to treat bladder control problems, contained propylene mesh that eroded through her vaginal tissue causing her severe pain. Had she known of the mesh's side effects and how difficult it would be to remove, Perry would never have had the Abbrevo implanted, her attorneys argued.

Ethicon used a laser-cut mesh in the Abbrevo instead of mechanically-cut mesh to save money, despite knowing the laser-cut mesh was too heavy and stiff for implantation in vaginal tissue and having already developed safer, lighter weight alternatives to propylene mesh, according to Perry's attorneys. The Abbrevo remains available on the market today. 

Perry’s team claimed that Ethicon didn't adequately test the Abbrevo to ensure its safety, while Ethicon argued the Abbrevo was thoroughly vetted and cleared by regulators. They suggested Perry’s injuries were the result of numerous other surgeries and not caused by the mesh implantation.

Richard A. Freese of Freese & Goss, who represented Perry, told CVN that the jury returning a punitive damages verdict at a case involving Ethicon’s newest and supposedly safest pelvic mesh product, which the company characterized as the “gold standard” durings its opening statements, could have significant implications on the tens of thousands of other similar cases pending throughout the country involving other pelvic mesh products made by Ethicon.

“Ethicon cannot even defend its newest product," Freese said. "This product has only been on the market since 2010."

Ethicon spokesman Matthew Johnson said in a statement that the TVT-Abbrevo is a safe product that has been approved by regulators for the treatment of stress urinary incontinence, and that the company intends to appeal. 

“We have strong grounds for appeal as we believe 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. 

The jury’s verdict extends Ethicon’s losing streak in state court at trials over its mesh products. In 2013 a New Jersey jury slammef the company with an $11.1 verdict over the Prolift system. That trial was also recorded by CVN. In April 2014 a Dallas jury slammed Ethicon with a $1.2 million verdict over its TVT-O product. Another trial over the Prolift, which was the first wrongful death claim against Ethicon to go before a jury, reportedly settled on Jan. 21 in Missouri state court.

The company has seen slightly better results in federal court, where the majority of pelvic mesh cases in the country are centralized in a sprawling multi-district litigation before U.S. District Judge Joseph R. Goodwin in West Virginia. Ethicon obtained a directed verdict in its favor at the first federal trial over its products in February 2014, but later suffered a $3.27 loss in a trial over the TVT-O sling the following September.

The U.S. Court of Appeals for the Fourth Circuit upheld the directed verdict in Ethicon’s favor on March 2, and a third federal bellwether trial involving Ethicon is currently in progress according to court dockets.

Freese said the next Ethicon trial in state court is scheduled to take place in July in San Antonio, Texas.

Perry is represented by Thomas Cartmell of Wagstaff & Cartmell LLP, Richard A. Freese of Freese & Goss, Stewart Albertson of Albertson & Davidson LLP and by Peter De La Cerda of Edwards & De La Cerda PLLC.

Ethicon is represented by Kim Schmid Bowman and Brooke LLP, William Gage and Burt Snell of Butler Snow LLP and by Soo Lin and Joshua Wes of Tucker Ellis LLP.

The case is Coleen Perry v. Ethicon Inc., et al., case number S-1500-CV-279123, in the Superior Court of California for Kern County.

David Siegel can be reached at dsiegel@cvn.com

Related:

Bellwether Ethicon Pelvic Mesh Trial Begins In California

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Sarasota, FL—Jurors last week found an Osprey, FL Walmart store was not liable for the back and knee injuries a patron claimed she suffered when she slipped on a rain puddle inside the store. Ballesteros v. Walmart, 2011 CA 8899.

Liliana Ballesteros sued Walmart Store 5264, claiming the store’s failure to maintain its roof or properly warn customers of hazards led her to fall while shopping during an October 2009 rainstorm. Ballesteros contended that she slipped in a puddle caused by a leak in the store’s roof and injured her back and knee in the fall. She sought more than $400,000 in past medical expenses alone.

During closing arguments, Ballesteros’ attorney, Carl Reynolds, contended that Walmart failed to adequately inspect the roof and claimed that Ballesteros was entitled to shop without being wary of water hazards on the store’s floor. “You heard (defense construction expert) Mr. (Robert) Koning say yesterday that someone should go into a Walmart and expect that they might run into a leak. I hope you were as shocked as I was,” Reynolds said. “I don’t know about you, but I expect the store will be safe and free of leaks and that the store did all it could to protect me and my family.”

However, the defense argued that the store met its duty to ensure that its roof was in good condition. In closings, Quintairos, Prieto, Wood & Boyer’s Peter Mollinelli reminded jurors of evidence that the store had contractors regularly inspect and maintain the roof under the terms of its warranty agreement and that the plaintiff’s visual roof inspection standard was unreasonable given the store’s size. “I’m sorry, a 200,000 square-foot roof, we’re going to go ahead and find a leak that could have been the size of a nailhead?” Mollinelli asked. “That’s the standard that they want to hold us to? Is that reasonable?”

In addition to maintaining its roofs, the defense also said that it adequately warned customers of potential hazards on the day of Ballesteros’ fall. Molinelli reminded jurors that on the day of Ballesteros’ fall, it was raining “very hard,” and store  employees had placed a cone near the leak to divert customer traffic and also placed a mat in the area to absorb any water.

The jury needed less than five hours to reach its decision, finding that the store was not negligent in the incident.

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Attorneys in the case included Carl Reynolds, of Carl Reynolds Law, representing Lilianna Ballesteros, and Quintairos, Prieto, Wood & Boyer's Peter Molinelli and Jeremy Jacobs, representing Walmart Store 5264.

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Gary Cohen describes how a vacuum extraction device was used by Dr. Samuel Kaufman during the birth of Jordan MacDonald. Cohen represents Jordan's parents, Melissa and Robert MacDonald in their suit claiming that the device's use led to Jordan's cerebral palsy. The third trial in the suit opened Wednesday. Click here to view opening statements.  

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West Palm Beach, FL—As trial opened Wednesday in a couple's malpractice suit against the health care providers they claim injured their son's brain during delivery, opposing counsel sparred over the cause of the now-teenage child's cerebral palsy. MacDonald v. Women’s Healthcare Associates, 2000 CA 008025.

Comparing the improper use of vacuum devices during childbirth to running a red light, Grossman Roth attorney Gary Cohen told jurors on Monday that Dr. Samuel Kaufman ran “a medical red light” when delivering Melissa MacDonald’s son, Jordan, in 1998 using a vacuum extraction device. “He did something he shouldn’t have done. He interfered with nature. He interfered with the obstetrical process.”

Jordan's parents Melissa and Robert MacDonald, represented by Cohen, are suing Kaufman and Women’s Health Associates, claiming Kaufman did not obtain appropriate consent prior to using a vacuum extractor to deliver Jordan. The MacDonalds contend that the device damaged Jordan’s brain, causing his cerebral palsy.

However, Adams Coogler’s Reed Kellner, representing the medical providers, told jurors Wednesday morning that the fact that Jordan was born prematurely, 35 weeks into gestation, was the likely cause of the child’s brain injury. “Prematurity places babies at increased risk for many different maladies, from death to cerebral palsy. And even babies that are late pre-term at 35 weeks have three times the rate of cerebral palsy as full-term babies,” Kellner said.

Kellner contended that Kaufman acted reasonably when using the vacuum, which he said was considered a safe and normal delivery method when Jordan was born. Kaufman “provided reasonable care by using the vacuum. The vacuum did not cause the injury, and the way the baby was delivered did not cause the injury,” Kellner said.

Although Kellner told jurors that Kaufman would testify that he never used a vacuum device without discussing the decision with the parents, Cohen contended that the evidence would show otherwise. “He never told (MacDonald) he was going to use it. He made the decision,” Cohen said. Kaufman “doesn’t have any memory of this at all, by the way. (MacDonald) does. This is her first baby. Mothers remember their pregnancies. She knows she wasn’t told anything, and the father knows she wasn’t told anything.”

This is the case's third trip before a jury in four years. An August 2011 trial ended in mistrial after less than a week when a dispute arose concerning parties' stipulation surrounding the authenticity of a signed medical consent form. Later that year, the defense prevailed in a retrial at which plaintffs sought more than $13 million in damages. However, Judge David Crow granted MacDonald’s motion for a new trial after finding that Kaufman’s legal team had improperly questioned witnesses. The current proceeding, with Judge Donald Hafele presiding, is expected to last approximately three weeks.

Counsel for the parties could not be reached for comment. 

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Related information:

Attorneys involved in the case include Grossman Roth's Gary M. Cohen and Andrew Yaffa, representing Melissa MacDonald, and Adams Coogler's Reed Kellner, Jennings Hurt, and Henry Jewett representing Samuel Kaufman and Women's Health Associates.

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 Fayetteville, GA—Augustine Nworah’s automobile repair business allegedly failed after his landlord Lana Infante towed away some of his customers’ cars during a dispute over unpaid rent. Nearly eight years later, his case against Infante and her property manager Deanna Davis also failed when Fayette County Superior Court Judge W. Fletcher Sams directed a verdict in favor of the defendants. Augustine Nworah v. Deanna Davis and Lana Infante (2009V-1108)

According to statements and evidence introduced in court, Nworah entered into a multiyear lease with Infante on May 1, 2007 for a facility in which to conduct his auto repair and sales business. The lease allowed Nworah to use ten parking spaces on the property for business purposes. The first year’s rent was $1,000 a month, with a 10% late fee.

After the lease was signed, Nworah was late in paying the rent on multiple occasions, resulting in late fees. On September 14, 2007, Nworah had not paid the full amount of rent owed by that time, including late fees. On that date, Infante contacted a wrecker service that towed from the property several vehicles owned by Nworah and his customers.

Nworah’s attorney, Larry Stewart, acknowledged in his opening statement that the lease contained a provision that allowed Infante to tow Nworah’s cars away if he did not pay his rent. However, in Stewart’s view, that provision conflicted with other contractual provisions that gave Nworah additional time to pay past due rent, subject to late fees. By towing the cars, Stewart said Infante was literally “taking the engine out of the business… Instead of waiting to get paid like he told them he would and they promised, they took away his business, they took away every car he had.”

Defense attorney Tracy Waldop contested Stewart’s account of the towing of the vehicles. She stated that Nworah was in fact using more than the ten parking spaces allowed under the lease and that Infante had warned him and other tenants not to occupy more than the entitled number of spaces. She continued: “When Jen Rose Properties [the name under which Infante was doing business] came back to the property that night, the only person that had not removed his cars was Mr. Nworah. And so they started towing. ... They only took down to his limit that he was allowed in the lease.”

In granting a directed verdict in the case, Judge Sams did not reach many of the issues raised by the attorneys in their opening statements. Instead, he based his decision on the results of a dispossessory hearing to evict Nworah that was held in Magistrate’s Court several months after the vehicles were towed. In Judge Sams’s view the judgment in the dispossessory hearing was res judicata regarding Nworah’s subsequent lawsuit.

When contacted by CVN, Larry Stewart expressed his disagreement with the judge’s decision and his intention to file a motion for a new trial. In Stewart’s view, the dispossessory action was filed in the name of Jen Rose Properties, but, at the time, Lana Infante had not incorporated and was doing business as a sole proprietor. Stewart believes that, under Georgia law, the judgment obtained by Jen Rose in the dispossessory action thus was void.

Attorneys for the defense were unavailable for comment at the time of this article.

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Related information:

Attorneys involved in the case include Larry Stewart of Lawrenceville's Larry Stewart and Associates for Augustine Nworah, and Tracy Waldrop of Fayetteville's Waldrop and Trite, representing the defendants.

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Attorney Sandra Ezell, representing Ford, delivers part of her opening statement while seated to demonstrate the position Che-Val Batts was supposedly in prior to the accident that paralyzed him. Click here for a copy of the complaint. Click here to see video from the trial.

Nashville, N.C. — A North Carolina state court jury heard opening statements Monday in a $28 million product liability suit claiming a two-point lap seat belt was defectively designed by Ford Motor Co. and caused the paralysis of an 11-year-old child after a traffic accident.

Che-Val Batts, who is now 16, suffered severe spinal injuries in 2010 after the 1999 Ford Escort he was riding in was struck by another vehicle that ran a stop sign. Batts was seated in the rear center seat of the vehicle and wearing a two-point lap belt, while other passengers in the car who weren't wearing seat belts suffered comparatively minor injuries.

During his opening statement for plaintiff Amos Tyndall, who sued Ford on Batts' behalf in 2011, Kent Emison of Missouri-based Langdon & Emison told jurors that Ford knew as far back as the 1960’s that two-point lap belts offer less protection than three-point shoulder belts. He said the collision caused Batts’ body to “jacknife” over the lap belt, while a three-point shoulder belt would have restrained his upper body and prevented his paralysis, according to a Courtroom View Network webcast of the proceedings

“Many cars are still on the road with a dangerous two-point lap belt, though that’s not something consumers know a lot about,” Emison told CVN. “From a consumer safety standpoint, this is a very relevant case.”

A spokeswoman for Ford declined to comment on the litigation prior to the jury reaching a verdict.

While Emison focused his opening statement on the design of the supposedly defective lap belt, his local co-counsel, Hoyt Tessener of Martin & Jones PLLC, detailed Batts’ injuries and a projected lifetime of costly medical care.

“Why we are here is to get the money that Che-Val needs to lead a productive life,” Tessener told the jury, arguing that Batts’ past and future medical expenses alone totaled more than $11 million, and that $28 million was a reasonable award for a once physically active child who will have to live with a severe disability for another 50 years or more.

“That’s the cost to fix what can be fixed and help what can be helped,” Tessener said.

During her opening statement on behalf of Ford, Sandra Giannone Ezell of Bowman and Brooke LLP’s Richmond office expressed sympathy for Batts but placed the blame for his injuries squarely on the driver of the vehicle who ran a stop sign while allegedly talking on his phone, Alejandro Rios.

“Ford provided a safe car with a safe, compliant seatbelt,” Ezell told jurors while describing how the 1999 Ford Escort met all regulatory safety standards at the time. “The truth is this was a high-speed accident.”

Ezell said the lap belt was designed to be worn below the waist, so that it could catch the hip bone and keep a passenger from being ejected from a car in a collision. However Batts slid forward in his seat and turned to one side prior to the collision, according to Ezell, who said that witness testimony would prove Batts had seat belt marks around his belly button.

Had Batts been wearing a three-point shoulder belt, Ezell said his injuries could have been worse. Ezell argued that while studies showed three-point belts offered greater protection for adults, the same could not be said for children. A small child wearing a shoulder belt could suffer a spinal injury even higher up the body, Ezell told jurors.

Ezell added that in 1999 nearly all major automobile manufacturers used two-point lap belts in the rear seats of their vehicles.

“Safety of all types evolves, and the same is true for seat belts,” Ezell said. “Ford decided against a shoulder belt for this vehicle with safety in mind.”

A recent trial involving similar allegations against Toyota Motor Corp. resulted in a $12.5 million plaintiffs’ verdict. In October a California state court jury found that a lap belt in a Toyota 4Runner was defectively designed and caused the paralysis of a passenger after the sport utility vehicle hit a tree. Bowman and Brooke also represented Toyota in that case, according to court records.  

The trial in North Carolina before Judge Thomas Lock is expected to last up to four weeks.

The plaintiffs are represented by J. Kent Emison of Langdon Emison and by Hoyt Tessener and Megan West of Martin & Jones PLLC.

Ford is represented by Sandra Giannone Ezell and Nathan Colarusso of Bowman and Brooke LLP.

Rios is represented by attorney Kevin Lewis.

The case is Amos Tyndall, as Guardian Ad Litem for Che-Val Batts v. Ford Motor Co. and Alejandro Ortiz Rios, case number 11-CVS-86, in the General Court of Justice, Superior Court Division of Nash County.

David Siegel can be reached at dsiegel@cvn.com.

Related:

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