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Legal Experts Say Recent Pelvic Mesh Verdicts May Suggest Johnson & Johnson Should Settle

Filed February 15th, 2016 Fran Kelley

After two jury awards exceeding $12 in the first pelvic mesh cases to go to trial, some legal experts have suggested that Johnson & Johnson should consider settling the estimated 150 cases remaining in the mass tort program and focus instead on the federal multidistrict litigation.

On February 10, 2016, a Philadelphia jury awarded $13.5 million to a plaintiff who brought suit against J&J’s Ethicon unit, which makes the Prolift pelvic mesh implant. The award included $10 million in punitive damages. This verdict closely follows a December verdict, awarding $12.5 million, $7 million of it in punitive damages, Law360 reports. An attorney told Law360 that two verdicts in a row in excess of $10 million “is a trend that’s worrying for Ethicon.”

Pelvic mesh implants (also called transvaginal mesh) are used to treat stress urinary incontinence (SUI) and pelvic organ prolapse (POP). But plaintiffs have alleged that the Prolift device is defective. The pores in the mesh are too small, leading to excessive scar tissue growth. In addition, the mesh is difficult to remove if it does not work properly, Law360 reports.

According to the Food and Drug Administration (FDA), the most common side effects associated with transvaginal mesh devices are:

  •  mesh erosion through the vagina (also called exposure, extrusion, or protrusion)
  • pain
  • infection
  • bleeding
  • pain during sexual intercourse
  • organ perforation
  • urinary problems

Many women with transvaginal mesh implants must undergo additional surgery to remove the mesh or repair damage. The woman who received the $13.5 million award said the Prolift implant left her in near constant pain and discomfort and unable to have sex. The problems persisted even after surgery to remove the protruding part of the implant.

In most of the 177 pelvic mesh cases currently listed in the Philadelphia County Court of Common Pleas pelvic mesh mass tort, J&J and Ethicon are the defendants. These cases are part of approximately 44,400 pelvic mesh suits nationwide naming J&J. (The figures are drawn from the company’s most recent U.S. Securities and Exchange Commission filing.)

In light of the two large verdicts, legal experts say J&J might be well-served by settling the remaining Philadelphia suits and focusing attention on the MDL. The company has already resolved a Philadelphia case scheduled for trial on February 22. But J&J may not be ready to end the entire Philadelphia litigation. An attorney representing J&J commented, “Two cases is not enough to throw up a white flag.” The next case on the Philadelphia schedule comes in November, Law360 reports. The company’s internal assessment of the two recent cases will likely also be a factor in its decision about settling. Did J&J expect to lose the two cases? Does the company believe it can win subsequent cases?

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