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 four 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 despite additional surgery, 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, though Ethicon voluntarily discontinued the sale of four other pelvic mesh products in 2012, after regulators expressed concern about the mesh's side effects.
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 similar cases pending throughout the country involving Ethicon's pelvic mesh products.
“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 Abbrevo is a safe product that has been approved by regulators for the treatment of stress urinary incontinence, and the company plans to challenge the verdict on 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 hit 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 email@example.com
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