Defense lawyers for Johnson & Johnson put the con in Ethicon last week. They claimed during opening statement in Perry vs. Ethicon (see the petition) that plaintiff Coleen Perry had contacted lawyers before undergoing additional surgery to have her pelvic mesh sling removed. The cynical implication was clear: she had the sling removed in order to sue the company. But that time frame trotted out by defense was shown to be a bald-faced lie by Mrs. Perry’s attorneys when she testified on Feb. 4. One of the first questions asked by her attorneys was how and when she contacted them to pursue litigation. She explained – and the point is easily verified – that she did not seek counsel until after she had undergone surgery to remove the experimental sling because it hurt her, and because it caused more, and greater, problems than it solved.
Every aspect of Sex is Painful
“Every aspect of sex is painful for me,” Mrs. Perry explained to the jury Wednesday. She said the pain lessened after she had additional surgery to remove the plastic mesh, but that pain “never really went away.” In addition, her stress urinary incontinence is now worse than it was before she had the original surgery to implant the mesh in order to treat her stress urinary incontinence. She said that sex can feel like “broken glass grinding” in her vagina, and she daily feels that something is tearing inside of her.
“When we attempted to have sex, it was painful,” she testified. “With each thrust there was a stabbing pain.” She said she could feel a “hard ridge” inside, and that her husband also felt it and had scratch marks on his penis.
One of her doctors, Dr. Singh, said the plastic mesh had eroded through her vaginal wall. She was told by another treating doctor that she should get a second opinion before doing anything more. She did so, and opted for having the mesh removed, or to remove as much of it as was possible.
Mrs. Perry also testified to feeling a pain level of 3 at the low end of her pain scale, and that some days are better than others; but she is always aware and always dealing with the pain in her vagina. She said she experiences pain when bending, lifting, doing laundry, vacuuming (pushing and pulling), stretching the fitted sheet over the mattress, gardening, doing regular household chores.
Defense Cross Examination
A female attorney from Minnesota brought the sort of pain women with pelvic mesh injuries have come to expect from defense attorneys hired by Johnson & Johnson. The woman cross examined Mrs. Perry for more than two hours for the Big Pharma giant, and had not finished with Johnson’s accuser even as court ended for the day. The defense attorney’s primary weapon was her Midwestern guttural accent (think “Fargo” without the folksy charm), which she wielded like a blunt instrument, emphasizing every syllable of every statement she made and every question she asked to suggest that everything she uttered discounted the plaintiff’s entire case. One had to wonder at the effect of the grossly emphatic tone alone in the linguistically neutral land of California. The jury heard “Mrs. Perry” used as an introductory vocative not less than 50 times in the dragging hours, in a sneering tone of thinly veiled distaste and disbelief, in the weary voice of the educated, reasonable Christian woman gallantly struggling to bring the fallen sinner to truth and Jesus. Were this a “reality” television show and not a real woman’s life, jurors and anyone else within earshot would have looked away in shame and horror and mercifully turned the channel.
Ethicon’s Woman for the Defense
Ethicon’s woman for the defense dragged the jury through Mrs. Perry’s childhood, her parents’ divorce, her step brothers and step sisters (who they are, what they do, how old they are, where they live now, whether they keep in touch, all sorts of fascinating information), her job history from the age of consent, her golfing (Did she learn it from her husband or did she teach him the game? Did she walk or ride in a cart when she played?), her walking, recreational smoking – all delivered with a note of bonhomie so false that it was difficult to imagine how Mrs. Perry could sit still for it for more than two hours, especially given that she had already told the jury she needed to wear pads and she always worried when she sat down whether when she stood up again if she would leave a spot of urine behind her.
Such grilling may be the price of filing a lawsuit, and it may be fair game to get awfully personal in a personal injury lawsuit and see if the plaintiff will crack, change her story, or betray more comfort or happiness than seems “appropriate” for someone claiming permanent injuries. But one had to wonder what effect this interminable revisiting of Mrs. Perry’s past – so much of it blatantly irrelevant, at least on its face – would have on the jury, especially as the plaintiff had already laid bare the most private parts of herself, and shown the world the heartache of living in a broken self that would never heal, because plastic is a gift that keeps on giving forever. It doesn’t dissolve nicely, like dissolving sutures. It never lets go, and never goes away, especially when it’s put in places it is never meant to be taken from. So was there a method to the laborious irrelevance of all these questions? Mrs. Perry had also admitted to hot flashes. Maybe if she were kept up there long enough the jury could be made to witness an emotional meltdown, see an unstable woman who couldn’t be trusted to tell the truth, see some clear evidence that could give them the theoretical underpinnings they needed to grant Johnson a pass on culpability. Was that the game defense was playing?
Mrs. Perry had, during questioning by her own attorney, come to tears, slowly, as she explained her predicament of feeling “like damaged goods,” countlessly turning away from her husband when she feared the slightest loving caress or gesture could morph into painful sex. It was a poignant moment, one not easily explained away by Ethicon’s mission statement that it was in the business of helping people; so the tomes of paperwork that defense began throwing at the plaintiff on the stand and the laborious litany of every aspect of her personal life could only be seen by a reasonable observer as an effort to bury the emotional truth in paperwork and personal history. It was an old, blame-the-victim defense to show that it was the unfortunate circumstances of the plaintiff’s birth and broken home parentage, the totality of all these experiences and choices the plaintiff had made that had led to her bad outcome with the plastic mesh placed inside her forever because she occasionally pissed herself a little when she coughed or laughed.
Medical (Read “Relevant”) Questions
The only potentially relevant questions came late in the day, when one could imagine the jury too weary to understand any implication of significance. In the same leaden, blunt instrument voice, the woman asked Mrs. Perry about her high blood pressure, high cholesterol, her heart palpitations, her reports of difficulty breathing, her asthma, allergies and gastrointestinal problems, including one diagnosis of irritable bowel syndrome. The implication seemed to be that Mrs. Perry could not tell her vaginal pain from any other. She was given a prescription of Vicodin along with asthma and allergy medication in Aug. 2010 (a year before her plastic implant; at long last, a potentially relevant question!). Defense asked if she could remember what that Vicodin was for. Mrs. Perry replied that she could not remember what the Vicodin was for.
Objection on Relevance
As defense presented Mrs. Perry another pile of papers, this one 16 pages which she had filled out for a checkup with a Dr. Mathers some ten years before (emphasis ours) her plastic mesh implant surgery, Mrs. Perry’s attorney, Peter de la Cerda – who is working with Matthews & Associates, Freese & Goss and Tom Cartmell on the case – objected on foundation and relevance and other grounds. The judge mercifully sustained the objection. Neither judge, jury, nor Mrs. Perry would be further bludgeoned by Ethicon’s defense for the day.
Court adjourned just after 4:00 Pacific time on Feb. 4. Mrs. Perry will return to the stand for more defense grilling when the trial resumes next week.