DALLAS – On Thursday, April 3, a 12-person jury in Dallas ordered Johnson & Johnson to pay a Texas woman $1.2 million for a defective plastic sling – the TVT-O – which J & J’s Ethicon division makes and markets for stress urinary incontinence. Several law firms, including Matthews & Associates and Freese & Goss, represented the woman, Ms. Linda Batiste.
Update: The verdict is on appeal; so no recovery has been made for the plaintiff despite the verdict.
J&J had Safer, Better Product
The defective products case turned on evidence that showed Johnson & Johnson had a safer, better product, but failed to use it on the plaintiff Linda Batiste. Internal documents from J & J’s Ethicon division showed that the company failed to use the better product that it had developed – laser cut mesh – because it didn’t want to lose seven years of data – on its machine cut mesh – which helped it to continue marketing its heavyweight, small-pored TVT and TVT-O polypropylene (plastic) mesh. The polypropylene in the TVT and TVT-O meshes (which are identical but for different insertion methods) is the same mesh the company had used in hernia surgery in the mid 1970’s. Evidence showed that Ethicon found problems with the heavyweight mesh even then, yet continued to use it.
Ms. Batiste’s attorneys – who included Rich Freese of Freese & Goss (officed in Dallas, Texas; Montgomery, Ala.; and Jackson, Miss.) and Tom Cartmell of Kansas City – showed the jury that many of Ethicon’s own engineers, doctors and safety experts knew the laser cut plastic mesh was superior to the mechanical cut version.
Ethicon emails show Mesh Problems
Evidence from internal emails and Ethicon’s own studies showed that executives knew the mechanical cut mesh left rough edges that could cause chronic pain. The machine cut mesh could also rope and fray and pill and tighten to the point of not being as fully functional as the laser cut mesh, which leaves a clean square edge. Plaintiff attorneys also showed how many European doctors had contacted Ethicon about the rough edges left with machine cut mesh, as well as the fraying, roping and other problems they encountered with the machine cut product.
Internal Ethicon emails also showed insider talk from Ethicon marketers and doctors who realized that changing to the safer, better laser cut mesh would mean the company would lose its “legacy” of seven years of safety studies which it was building up with the machine cut product.
Putting the Con in Ethicon
The irony is almost too obvious to state: A company which calls itself Ethicon – nomenclature presumably meant to recall the word “Ethical” – has taken actions which are clearly less than ethical. The company’s own internal documents showed that it was aware of the safety problems with machine cut mesh and aware that those problems had been somewhat mollified with laser cut mesh, yet company executives prompted by marketers did not want to lose the doctored data they were continuing to try to build up to try to show their product was safer than it in fact was. Ethi”Con” was more interested in the appearance of safety rather than the reality of it.
Ethicon executives who should have known better, who should have been more ethical, let their marketers run the show; and they left enough of a paper trail for the jury to see through it all.