Johnson & Johnson and Ethicon lost a $5.7 million jury verdict in Bakersfield, Calif. today, March 5, 2015. A jury of 12 awarded plaintiff Coleen Perry $700,000 in actual damages and $5 million in punitives after three days of deliberation following a two-month trial. It was the fourth pelvic mesh jury trial which ended in jurors awarding more than $1 million to women injured by pelvic mesh made by Johnson & Johnson. This was the first verdict involving Ethicon’s TVT-Abbrevo product, one of Johnson & Johnson’s latest versions of a plastic mesh sling used to treat stress urinary incontinence.
*Update: The verdict is on appeal; so no recovery has been made despite the verdict.
The jury by a 9-3 vote ruled Ethicon’s TVT-Abbrevo – installed in Mrs. Perry to treat stress urinary incontinence – was defective in design. The jury also voted 10-2 that Johnson & Johnson and Ethicon failed to warn Mrs. Perry’s doctor of the dangers of installing the plastic product in the female pelvic floor. The jury voted a unanimous 12-0 that Ethicon acted with malice (a 9-3 vote would have carried the malice vote for the plaintiff.)
Pelvic Mesh is Not Removable
A large part of the plaintiff’s argument in Mrs. Perry’s and other pelvic mesh cases won by plaintiffs was that surgeons were taught only how to install the mesh, not how to remove it. The failure to warn claims concern the fact that Ethicon fails to tell doctors (and in turn fails to inform women) that if the mesh does not perform as planned or causes constant pain, it can prove impossible to remove from the human body. Because the plastic material is porous and actually designed to “mesh” with the body’s tissues, it is virtually impossible to safely remove when it fails.
Plaintiff’s Attorney David Matthews
Matthews & Associates attorney David Matthews, whose firm was part of the winning trial team representing Mrs. Perry, said, “We’re enormously grateful that justice is served for Mrs. Perry. We’re grateful the jury was able to see through Ethicon’s blame-the-victim defense.”
Ms. Perry’s attorneys Rich Freese and Tom Cartmell argued over the nearly two-month trial that Mrs. Perry suffered permanent pain from her TVT-Abbrevo mesh implant, which she had to have removed some six months after it was implanted. An explant surgeon removed as much of the mesh as he was able, though portions of it remain inside her today. Mrs. Perry’s attorneys also argued that she now suffers continued and worsening incontinence, in addition to permanent, debilitating pain. Attempts at sex, she testified, feel “like broken glass” being ground inside of her.
Defense argued that the TVT Abbrevo sling represented the “gold standard” of care, and brought expert witnesses who claimed it was superior to the old Burch method of suturing for treatment of stress urinary incontinence. Defense argued that the prolene material was the same material as the sutures used in the Burch method, so the body’s inflammatory response isn’t any different for mesh than it is for sutures.
Defense also argued that changes in Mrs. Perry’s diet prevented her from healing properly and led to pelvic pain which she mistakenly attributed to the plastic mesh that remained inside her. Defense also pointed out other female problems which might be causing her pains apart from the mesh. Defense attorneys questioned her for nearly three hours on the witness stand, going back to her sexual behavior as a young teenager.
In closing rebuttal, attorney Rich Freese objected to the defense’s hours’-long cross examination of Mrs. Perry’s life history. He also called the defense’s dietary theory about the source of her pelvic pain “nonsense.” He compared Ethicon’s method of training surgeons to install pelvic mesh while failing to give them any instruction on its removal, to that of teaching a pilot to take off without teaching that pilot how to land.
The jury apparently agreed with Mr. Freese.