Bellwether Ethicon Pelvic Mesh Trial Begins In California

Posted by David Siegel on Jan 26, 2015 3:53:00 PM

Bakersfield - Opening statements in a bellwether product liability suit alleging Johnson & Johnson Inc.’s Ethicon unit designed a defective pelvic mesh product and withheld knowledge of the product’s risks began Monday in California state court.

Plaintiff Coleen Perry’s suit is the first case involving Ethicon’s “TVT-Abbrevo” sling system to be decided by a jury out of tens of thousands of pelvic mesh suits filed in state and federal court across the country. Perry had the device implanted in 2011 to treat a bladder problem called stress urinary incontinence, according to her complaint. Perry’s suit claims she later suffered painful side effects after her immune system reacted to device’s propylene mesh and it eroded through her vaginal tissue.

During opening statements, Perry’s attorney Thomas Cartmell of Wagstaff & Cartmell LLP told jurors that Ethicon knew about the potential for propylene mesh to prompt an immune system response but failed to appropriately warn patients and physicians. Cartmellf told jurors that if Perry and her doctor knew the TVT-Abbrevo couldn’t be easily removed and would remain in Perry’s body despite additional surgery, it never would have been used.

Cartmell told jurors that evidence would show Ethicon used a laser-cut mesh in the TVT-Abbrevo, which remains on the market, 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.

“The reason for this product was because they needed to protect their money,” Cartmell said, according to a Courtroom View Network webcast of the proceedings. “They should have used one of their lighter-weight meshes they had already developed and was in their arsenal.”

Cartmell said Ethicon falsely represented that the TVT-Abbrevo had been approved by the U.S. Food and Drug Administration. Instead the FDA had given a clearance to the device based on evidence submitted by Ethicon, Cartmell argued. He claimed that Ethicon didn’t provide the agency adequate information to make the clearance determination, because the studies used to supports its application were based on other mesh devices.

While he didn’t ask for a specific amount of damages during his opening, Cartmell told jurors that the mesh would likely remain inside Perry’s body forever, and that she would probably never be able to engage in sexual intercourse with her husband again despite only being in her 40’s.

Representing Ethicon, Kim Schmid of Bowman and Brooke LLP told jurors the TVT-Abbrevo was the “gold standard” in pelvic mesh products, and that Perry only considered suing Ethicon after seeing a plaintiff attorney’s advertisement.

Schmid argued that Perry had numerous medical procedures in a nine-month span to treat organ prolapse, and that there was no way to definitively link the TVT-Abbrevo implantation to Perry’s current condition.

“The other surgeries involved the same risks and possible side effects as the TVT-Abbrevo,” Schmid said.

Ethicon has not fared well to date in state court trials over its pelvic mesh products. In 2013 a New Jersey jury socked the company with an $11.1 verdict - which is still being appealed -  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 Judge Joseph R. Goodwin. 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.

A third federal bellwether trial involving Ethicon is scheduled for March, according to court dockets.

The only pelvic mesh manufacturer to obtain defense verdicts in state court is Boston Scientific Corp., which prevailed in two cases in Massachusetts state court in 2014 but was later hit with an $18.5 million verdict by a federal jury. 

The current state court trial before Judge Lorna Brumfield is expected to last up to three weeks.

Attorneys for Perry and a representative for Ethicon did not respond to requests for comment from CVN.

The plaintiffs are represented by 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 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.


Topics: Products Liability

Engle Progeny Review for the Week of January 19

Posted by Arlin Crisco on Jan 23, 2015 4:21:00 PM

Breaking News:  Philip Morris Prevails in $21.9M Engle Progeny, Laryngeal Cancer Suit


Jose Vila v. Philip Morris

Miami—Jurors Friday afternoon found Philip Morris-brand cigarettes did not cause the cancer that cost Jose Vila his larynx, clearing the tobacco giant in Vila’s $21.9 million Engle progeny tobacco lawsuit.

The jury took less than seven hours before finding that, while Vila suffered from nicotine addiction that caused his laryngeal cancer, Philip Morris-brand cigarettes were not the legal cause of the disease.  

Vila had sought up to $21.9 million in past compensatory damages alone, with his attorney, the Ferraro Law Firm's Allan Kaiser, presenting a range of damages to jurors during closing arguments. 

Vila sued Philip Morris, claiming its Marlboro-brand cigarettes caused his nicotine addiction and laryngeal cancer. Vila 60, began smoking at 15 while living in Spain, and continued the habit for more than 24 years, quitting sometime after his cancer diagnosis in 1994. Vila's larynx was removed two years later to treat a recurrence of the cancer.

The length of time Vila smoked Philip Morris’ cigarettes, and Vila’s own credibility, was a key issue at trial. Shook Hardy Bacon’s Robert McCarter, representing Philip Morris, told jurors Vila had not smoked his client’s cigarettes long enough for them to cause Vila’s cancer. McCarter reminded jurors in closing arguments that circumstantial evidence weighed against Vila’s claim that he began smoking Marlboro cigarettes as a teenager in Spain. What you learned when we cross-examined Dr. Proctor is Marlboro cigarettes were five times more expensive in Spain than other cigarettes because they were imported and the sale was by the Spanish monopoly,” McCarter said. “So Mr. Vila is claiming that, as a teenager without any money, to be smoking the most expensive cigarette, or one of the most expensive cigarettes in Spain.”

Instead, McCarter said the evidence established that Vila smoked Philip Morris-manufactured Marlboros for only three-and-half years, while living in the U.S., which wasn't long enough to cause Vila's cancer. “Where is the evidence that three-and-a-half years of smoking is enough to cause laryngeal cancer?" McCarter asked. "Where is the evidence? They have the burden of proof? Who testified to that? Nobody.”

However, Kaiser argued that the Marlboros Vila smoked for more than a decade while living in the Dominican Republic were produced by a Philip Morris-owned company. "(The Marlboro cigarettes in the Dominican Republic) are Philip Morris cigarettes, and they're the same Marlboro cigarettes that are manufactured here in the United States  and smoked here in the United States," Kaiser said. "And, if for a minute... Philip Morris USA, Inc.had evidence that there really weren't cigarettes that they were making being sold in the Dominican Republic, they would've brought a representative from their company to say 'No. Those Philip Morris Marlboro cigarettes weren't ours,' and they didn't do it." 

McCarter countered that the Marlboro cigarettes Vila bought in the Dominican Republic were manufactured by a third-party licensee in which Philip Morris held an interest. McCarter told jurors that connection was insufficient to hold Philip Morris liable. "This question (on the verdict form) doesn't ask whether cigarettes made by a company that Philip Morris had a stake in caused (Vila's) cancer," McCarter said. "The question is, did cigarettes manufactured by Philip Morris cause (Vila's) cancer. Philip Morris did not manufacture those cigarettes.Their own expert (tobacco industry expert Robert Proctor) admitted it."

Neither the parties’ attorneys nor Philip Morris representatives could be immediately reached for comment.

The verdict, which jurors took more than six hours to reach, gives tobacco manufacturers the win in the first state court Engle progeny case to come to trial in 2015. On Wednesday, however, a federal jury in Jacksonville hit Philip Morris with a $17.2 million verdict in an Engle progeny suit brought by a woman who claimed that smoking the company’s cigarettes led to vascular disease and the amputation of her legs. Donna Brown v. Philip Morris USA et al,3:09-CV-10687-WGY-HTS. 

Our weekly review is curated from our unequaled gavel-to-gavel coverage of Florida's Engle progeny cases.

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Topics: Engle Progeny, Florida, Tobacco Litigation, Engle Progeny Review, Jose Vila v. Philip Morris

$40M Cerebral Palsy Malpractice Lawsuit Goes To Trial

Posted by David Siegel on Jan 22, 2015 1:43:00 AM

Salem, Ore. - Opening statements took place Wednesday in a $40 million medical malpractice trial in Oregon state court over claims that a doctor’s delay in performing an emergency Cesarean section caused a child to be born with permanent brain damage.

The parents of 7-year-old Maverick Ramseyer sued Dr. Denis Dalisky in 2011 alleging that his failure to order a C-section quickly enough after Ramseyer’s heart rate dropped to dangerously low levels resulted in him developing cerebral palsy, which an attorney for Elizabeth and Derrick Ramseyer told jurors would require a lifetime of costly medical care.

"It's never going to get better," said Kenneth Suggs of Janet Jenner & Suggs LLC while detailing the extent of Maverick’s brain damage to the jury, according to a Courtroom View Network webcast of the proceedings.

Elizabeth Ramseyer was two-weeks overdue in December 2007, when she was admitted to Silverton Hospital, according to the Ramseyers' complaint. Suggs told jurors Dalisky ordered the use of dangerously high levels of childbirth induction drugs and did so mostly from his home while directing hospital nurses over the phone.

Ramseyer was instructed to push before she was sufficiently dilated, which caused Maverick to go into distress and his heart rate to repeatedly dip below normal, Suggs told the jury. Dalisky finally ordered a C-section when the heart rate dropped to a dangerously low rate for nearly 8-minutes. By then Maverick had inhaled fecal material and been deprived of oxygen for long enough to cause brain damage, according to Suggs.

Suggs argued that both the decision to manage Ramseyer’s birth remotely and to not immediately order a C-section based on the information relayed to Dalisky fell below the standard of care.

"What would a reasonable doctor do?" Suggs asked the jury. "A reasonable doctor now would come see the patient. A reasonable doctor would evaluate the patient. And a reasonable doctor would deliver the baby because you have no idea how long this is going to go."

Suggs told the jury that while $40 million in damages may seem high, that amount is necessary to adequately provide decades of medical care for a child with severe neurological disabilities. Cerebral palsy affects muscle coordination and emotional development, and Suggs said Maverick will require a range of expensive therapies and equipment like braces for years to come.

"We're going to ask you to award enough money so that those things can be afforded after he becomes 18," Suggs said. "The parents have no stake in this. It's all for Maverick."

Representing Dalisky, John Hart of Hart Wagner LLP told jurors that his client acted properly during a delivery with unexpected complications, and that the extent of Maverick’s disabilities can’t be fully determined until he is older.

Hart argued that periodic dips in a baby’s heart rate like those experienced by Maverick, known as variable decelerations, are common when labor is induced with drugs, and that they don’t always indicate a baby is in distress.

"They are so common that we could go to any hospital in Oregon right now and see variable decelerations," Hart said.

Dalisky promptly ordered a C-section as soon as he had information showing Maverick was in distress, according to Hart, who told the jury that doing so any earlier would have posed a risk to the mother.

Hart disputed the Ramseyers’ claims that Maverick needs lifelong care, describing him as a normal 7-year-old who participates in taekwondo and plays soccer.  He also called into question the credibility of expert witnesses retained by the plaintiffs who had never physically examined Maverick.

"We're shocked that now all these doctors who have never seen Maverick are going to come in and explain why he needs lifelong care."

The trial before Judge Vance day is expected to last up to two weeks.

Attorneys for the parties did not immediately respond to a request for comment from CVN late Wednesday evening.

The Ramseyers are represented by Kenneth M. Suggs of Janet Jenner & Suggs LLC and by Laura Kalur of Kalur Law.

Dalisky is represented by John E. Hart of Hart Wagner LLP.

The case is Ramseyer v. Dalisky, case number 11C22122, in Marion County Circuit Court.


Topics: Malpractice

Jury Awards $425K To Driver of Car T-Boned By Tractor-Trailer

Posted by Steve Silver on Jan 21, 2015 2:18:00 PM


Defense attorney Christopher Penna delivers his closing argument to the jury shortly before they delivered a $425,000 verdict for Plaintiff Lee Scott Collins.


Decatur, GA - A DeKalb County jury awarded $425,000 in damages to a driver whose Jeep Cherokee was spun around and pushed sideways several hundred feet by a fully loaded tractor-trailer. Lee Scott Collins v. Lonzia Collins, KCH Trucking Company and Westfield Insurance Company, 13-A-48999.

Lee Scott Collins was driving the Jeep and hauling an attached dog trailer on I-75 in Cook County on April 19, 2012. According to evidence presented at trial and court documents, a KCH Trucking Company truck driven by Lonzia Collins (who is no relation to the plaintiff) struck the trailer and spun it around, jackknifing Lee Collins’ Jeep. The truck then hit the Jeep broadside on the driver’s side and pushed it several hundred feet before the vehicles came to a stop.

During the two-day trial, Lee Collins told jurors that the collision was harrowing. “Then the next thing you see is the grill of that truck right here,” Collins said. “You think you’re pretty much done; I mean you pretty much figure life is over at that point.”

The extent of Lee Collins’ injuries served as a key issue at trial. The jury heard extensive testimony from seven expert medical witnesses, including Collins’ treating physicians, on the issue. Collins’ attorneys introduced evidence that the accident injured Collins’ shoulder and back and led to post-traumatic stress disorder in their client. His doctor recommended surgery for his shoulder injury, which Collins has not yet undergone.

Lee Collins’ attorney, R. Scott Campbell of Shiver Hamilton, explained his client’s decision not to undergo the surgery he says he needs. “He doesn’t want the surgery. He’s dreading it,” Campbell said. But “(Collins) has come to the realization as it comes to his shoulder that he needs it.”  Campbell pointed out that the doctors who had actually treated Collins linked Collins’ injuries to the accident, while defense experts had never treated Collins.

By contrast, defense attorney Christopher Penna, of Penna & Mendocino, noted in closings that Lee Collins was treated for his injuries at a local clinic until September 2012, and did not visit another doctor until February 2014, when physicians determined that Collins’ physical problems were caused by the accident. During that nearly 17-month period, the plaintiff filed the lawsuit at issue. Penna also noted the lack of objective medical evidence to support a conclusion that the accident caused Collins’ ailments.

Penna said that Collins’ description of his condition before and after the accident “doesn’t prove to what extent the injuries or subjective complaints were caused by the accident. Just because something happens afterwards doesn’t mean it was caused by a specific event… particularly when the sole basis of liability linking up those events are subjective complaints by someone with a specific financial interest in this case.”

After the trial, Scott Campbell praised the jury for its attentiveness and perseverance in the case, noting that they deliberated until nearly 10:00 pm on a Friday night before reaching a verdict. He also expressed appreciation that the jury “got it right” by returning a verdict that Lee Collins was not in any way at fault in the accident. The defense attorney was not available for comment by the time of this article’s publication.

CVN will provide gavel-to-gavel video coverage of this trial as soon as it is available.



Related information:

Attorneys involved in the case include R. Scott Campbell of Atlanta's Shiver Hamilton representing plaintiff and Christopher Penna of Conyers' Penna & Mendocino for the defense.

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Topics: Negligence, Vehicle Collision, Georgia, Transportation

Georgia Power Struck with $3.6M Verdict in Utility Truck Collision Trial

Posted by Steve Silver on Jan 20, 2015 6:13:00 PM



Lawrenceville, GA – A Gwinnett County jury awarded $3.6 million to a couple who suffered spinal injuries when a Georgia Power Company truck rear-ended their car. Sandra Elizabeth Flores Juarez and William Pineda Villacorta v. Georgia Power Company and Cassandra Jeyeun Kim, 11-C-09903-S1.

Sandra Juarez, the car’s driver, received $1.5 million in compensatory damages, and her passenger, William Villacorta, received $2.1 million.

The accident occurred August 16, 2010, on Hamilton Mill Road in Gwinnett County. According to evidence introduced at trial and other court documents, Juarez stopped, signaled a left hand turn, and was waiting for traffic to clear when a Georgia Power truck driven by Cassandra Kim struck the rear of the couple’s Nissan Maxima. Kim, who was traveling about 40 mph just before the accident, was cited for following too closely.

Juarez underwent a spinal fusion and had arthroscopic surgery on her shoulder because of the accident. Villacorta suffered neck injuries and underwent a spinal fusion. Juarez’s medical bills totaled more than $300,000, while Villacorta’s medical expenses exceeded $200,000.

Sandra Juarez's attorney, Joseph Fried, of Atlanta’s Fried Rogers Goldberg, said he was “extremely proud of what the jury did.” He added that it “took courage” for the jurors to reach their verdict. According to Fried, the defense contested both the couple’s version of the accident and the extent of the injuries they suffered. However, Fried concluded, “[The jurors] kept their eye on the ball.”

Representatives for Troutman Sanders, which represented the defense in the case, referred CVN to Georgia Power for comment. Jacob Hawkins, a spokesman for Georgia Power, said that the company was "currently evaluating the court's decision and determining our next steps."

Related information

Joseph Fried, of Atlanta's Fried Rogers Goldberg, represented Sandra Juarez, Orlando Ojeda, of Atlanta's Walker Ojeda, represented William Villacorta, and Scott Farrow, of Atlanta's Troutman Sanders, represented the defense.

Learn more about CVN's unparalleled coverage of top Georgia trials. 

Topics: Negligence, Georgia

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