Despite the requests of pharmaceutical manufacturer Johnson & Johnson, all but one transvaginal mesh case will continue on in Pennsylvania as part of a multi-district litigation.
Philadelphia Court of Common Pleas Judge Arnold New ruled on Dec. 5 that only one case claiming injuries due to the company’s pelvic implant should be dropped from the program. More than 100 cases remain.
The Pennsylvania cases represent only a small fraction of claims pending against pelvic mesh manufacturers. More than 100,000 lawsuits are pending internationlly, while quite a few have already wrapped in favor of the plaintiff’s or been settled by pharmaceutical companies.
‘We Are Heartened’
Johnson & Johnson subsidiary Ethicon recently requested that the transvaginal mesh cases pending in Pennsyvania’s mass tort program be tossed due to a lack of jurisdiction. Ethicon is not based in Pensylvania, but rather New Jersey.
As a rationale for their request, attorneys for Ethicon pointed to the U.S. Supreme Court’s recent decision in Bristol-Myers Squibb v. Superior Court of California. That ruling established that out-state-plaintiffs may not sue companies that are not considered to be “at home.”
At issue, was the relationship between Ethicon and Secant, a biomaterials supplier based in Bucks County Penn. Secant manufactures many of Ethicon’s products (but, notably, not the company’s Prolift+M pelvic mesh). Plaintiffs are arguing that Pennsylvania is an appropriate venue for the cases due to the two company’s working relationship.
Judge New, apparently, agreed. His order tossed only one case.
“We are heartened by Judge New’s ruling affirming Pennsylvania jurisdiction for all but one of the over 100 Ethicon transvaginal mesh cases,” attorney Shanin Specter said in a statement. “Now our badly injured clients can continue to have us try their cases, which have been overwhelmingly successful both in Philadelphia and around the country.”
Specter added that he planned to appeal the lone tossed cases.
A Johnson & Johnson spokesperson, meanwhile, released a statement conveying the company’s “disappointment.” The pharmaceutical manufacturer noted that it intends to “consider our legal options to have the issue considered further.”
Plaintiffs Find Favorable Grounds on Mesh Cases in Pennsylvania and Elsewhere
This recent decision in Philadelphia is good news for plaintiffs. Pennsylvania is traditionally favorable territory for such fights.
Last spring, a state court in Philadelphia ordered Johnson & Johnson to pay a total of $20 million — $17.5 million of which was punitive — to a New Jersey woman who contended the company’s mesh inserts had left her in constant pain. There’s been more verdicts in favor of the plaintiff in Philly since that time, including a $57.1 million decision in September.
That said, it seems to be a favorable season for vaginal mesh plaintiffs regardless of the venue. And there are many.
Here are a few of Johnson & Johnson’s recent losses:
— In February of 2016, a New Jersey woman was awarded $13.5 million. She said that Ethicon’s transvaginal tape (TVT) had left her in constant pain, despite two surgeries aimed at fixing the device. The jury found that the plaintiff would likely not have been given the Ethicon mesh if the risks had been better understood.
— A Florida woman was awarded $4.4 million, also in February 2016. The jury awarded $4 million of that sum to “discourage others from behaving in a similar way.”
— Johnson & Johnson settled several thousand lawsuits in January 2016 for the amount of $120 million.
— A California jury awarded $5.7 million to a plaintiff in March 2015. Again, the bulk was punitive, this time for conduct that was termed “malice.”
Playing out at the same time as the mass tort cases in Pennsylvania, is another case nearby in New Jersey. This case involves a plaintiff who says that the pelvic mesh she had implanted was faulty and that Johnson & Johnson failed to adequately warn patients of the device’s risks.
Thousands of similar cases await just in New Jersey. This case, though, is only the second to come to trial thus far. In the first case, the plaintiff was awarded $11.1.
Adam Slater, an attorney representing the second plaintiff, reminded jurors during his opening remarks that Johnson & Johnson was a high-dollar company, worth an approximate $70 billion. And that such a company should be made to pay for their mistakes.
“We know that the only language they speak is money,” Slater said to the New Jersey jury. “And the only way to deter them and to punish them is to make them pay.”