California AG’s Office Asks Judge To Award $800M As Nation’s 1st Pelvic Mesh False Marketing Trial Concludes

Posted by David Siegel on Sep 27, 2019 12:57:31 PM

mesh openings

CVN screenshot of of California Deputy Attorney General Jinsook Ohta addressing the court

San Diego, CA - A California state court judge heard closing arguments Thursday in the first trial in the country involving a state attorney general’s false marketing claims against a pelvic mesh manufacturer.

Lawyers from California Attorney General Xavier Becerra’s office asked San Diego County Superior Court Judge Eddie Sturgeon to order Johnson & Johnson’s Ethicon unit to pay roughly $800 million in penalties for allegedly withholding the dangers of pelvic mesh implants from physicians and patients.

Judge Sturgeon indicated he would issue a ruling in six to eight weeks. 

The long-running trial, which began July 15 and took place without a jury, was webcast and recorded gavel-to-gavel by Courtroom View Network.

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Judge Sturgeon’s ruling could have major implications for Ethicon and other pelvic mesh manufacturers. Last week West Virginia became the fifth state to sue Ethicon for pelvic mesh-related false marketing claims, and an award in the hundreds of millions could prompt attorneys general in other states to take similar action.

While the prospect of a new wave of litigation from state AG’s is significant for mesh manufacturers, the potential exposure from individual state’s cases could vary greatly. Earlier this year Washington State settled their mesh lawsuit against Ethicon on the eve of trial for $10 million.

In addition to West Virginia, cases against Ethicon are currently pending in Kentucky and Mississippi.

Polypropylene pelvic mesh, also known as transvaginal mesh, was used for years to treat women suffering from incontinence and a condition known as pelvic organ prolapse. While some mesh devices remain on the market, sales have largely been halted following increased scrutiny from the FDA.

Ethicon and other mesh manufacturers argue that mesh implants offer a safer and less invasive treatment for these conditions than major surgery, but women throughout the country say the implants left them suffering from chronic severe pain and other serious side effects.

Thousands of women who received mesh implants sued manufacturers like Ethicon, Boston Scientific and C.R. Bard, accusing the companies of failing to disclose risks they supposedly knew were associated with the exposure of polypropylene to human tissue. Many women undergo numerous surgeries in attempts to remove mesh implants which sometimes cannot be removed entirely.

Ethicon and other manufacturers have argued at trial that they fully disclosed the risks associated with mesh to doctors and patients, and that the injuries claimed by many women are the results of pre-existing medical conditions. They point to thousands of women were successfully treated with pelvic mesh implants.

The trials to date (many of which were recorded by CVN and are available to CVN Video Library subscribes) have resulted in a mix of plaintiff and defense verdicts. While the testimony in the California case largely echoed those personal injury cases, it marked the first time a mesh manufacturer faced accusations at trial that its marketing of mesh devices ran afoul of state laws.

In the California case, Ethicon is accused of violating the state’s Unfair Competition Law, or UCL. Much of the trial testimony involved Ethicon’s use of sales representatives, brochures, and Instructions For Use, or IFUs.

Ethicon argued that a risk of pain was clearly laid out in those materials, but lawyers for California argue that supposedly leaving out a warning specific to chronic pain and foreign body rejection was not adequate.

CVN will webcast Judge Sturgeon’s ruling if read from the bench. Until then, subscribers to CVN’s Video Library get full access to gavel-to-gavel video from the trial, including all witness testimony and digital images of exhibits and demonstratives.

California was represented at trial by in-house attorneys from the AG’s office.

Ethicon was represented by attorneys from Covington & Burling.

The case is captioned The People of the State of California v. Johnson & Johnson, case number 37-2016-00017229-CU-MC-CTL in the Superior Court of California, County of San Diego.

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Topics: Products Liability, Pelvic Mesh Litigation, California