Bellwether verdict against J&J pelvic mesh upheld by NJ Supreme Court

TVM woman Bellwether verdict against J&J pelvic mesh upheld by NJ Supreme CourtMass Tort Nexus reports that the New Jersey Supreme Court has upheld an $11.11 million verdict from a February 2013 bellwether trial against Johnson & Johnson unit Ethicon, Inc. over its Gynecare Prolift mesh product used to treat pelvic organ prolapse and adverse effects related to the product. The Supreme Court refused to hear an appeal by the company, which had previously had post-trial motions denied by New Jersey Superior Court Judge Carol E. Higbee.

Also in March this year a three-judge appellate panel of the state appeals court heard the defendant’s oral arguments challenging Judge Higbee’s decision to uphold the jury’s verdict. The jury had found Ethicon responsible for the plaintiff’s injuries and awarded her $3.35 million in compensatory damages and $7.76 million in punitive damages for injuries caused by the product.

The panel agreed with Judge Higbee. The panel wrote, “The evidence was sufficient to allow the jury to find an adequate warning would have prevented plaintiff’s injuries.”

Ethicon stopped selling Gynecare Prolift in 2012, six years after the plaintiff, Linda Gross, had it implanted to repair a pelvic floor collapse. Only two years after having the mesh implanted she filed suit against Ethicon, alleging that the product caused severe nerve pain that affected both her professional and personal life, costing her time with family, her nursing career, and her sex life. She underwent 18 surgeries to remove the mesh.

“The guidance that Gross never received might have led her to pursue a different course of treatment and avoid the injuries for which she sued the pharmaceutical entities,” the three-judge appellate panel ruled according to Law360. Now the New Jersey Supreme Court has upheld the Appellate Division’s ruling.

“This case now establishes certain key legal rulings are binding, including the propriety of punitive damages, which strengthens every case in this litigation,” Adam M. Slater, Gross’s attorney, told Law360. “We will now look at motions that can be filed to cement the benefits of the decision for thousands of deserving women, including collateral estoppel on the failure-to-warn verdict.”

It is possible that this bellwether case might not only affect the future of the 31,752 other suits against Ethicon in federal multidistrict litigation over pelvic mesh devices, but also a whole new slew of lawsuits that are being filed against Ethicon because of the injuries alleged to be caused by its product Physiomesh.

Physiomesh is made from the same flexible polypropylene mesh used in Gynecare Prolift and other transvaginal mesh (TVM) devices. It is used to treat hernias and is designed to reinforce the abdominal wall, preventing future hernias from occurring.

In cases involving the TVM devices, thousands of women allege this mesh can migrate within or erode inside the body, and perforate or puncture organs, causing chronic pain, infections and even death.

This May, Ethicon issued a voluntary withdrawal of its Physiomesh products in the U.S. and recalls in other countries based on studies that have shown that it is related to significantly more recurrent hernias and the need for additional surgeries. Physiomesh has also been linked to more postoperative pain than similar devices, an increased risk of organ perforation, mesh migration, sepsis and even death.

According to the Daily Hornet, Ethicon already had lawsuits brought against it related to Physiomesh before the recall, with plaintiffs accusing the company of selling a defective hernia mesh implant. The first trial date is set for Jan. 22, 2018, in Illinois.

Mass Tort Nexus
Beasley Allen