Canadian Courts Take Aim At Ethicon
April 23, 2012 ~ The case against Johnson & Johnson, Ethicon, and Ethicon Women’s Health and Urology and Gynacare was filed in Ontario Superior Court of Justice on February 3, 2012 but details are now just surfacing.
The claim names Plaintiffs Janice Carol Kouyoumjian and Terrence Kouyoumjian (her spouse) on behalf of themselves and others “similarly situated in Canada.” Here is the background story following a television report.
Matthew Baer, a lawyer with the Siskinds Law firm in Ontario tells MDND they don’t have Multidistrict litigation in Canada, instead a person can file an individual claim or join a class action.
“In Canada, we file on behalf of one person and get that certified as it applies to everyone else. The individual issues will be sorted out down the road. It can take two years to be certified and we don’t get access to discovery until the case is certified.”
It is only after the class is certified that a Canadian law firm can move ahead on discovery getting documents from the other side. As the case proceeds individual are brought forward to represent the class like a mini-trial.
The Kouyoumjians are asking for “pecuniary and special damages in the amount of $500,000 for each person implanted with one of the Defendants’ Pelvic Mesh Products (as defined herein) or as aggregated following a trial on the common issues.”
Carol was implanted with transvaginal tape to treat stress urinary incontinence on May 8, 2007. Since then she has “suffered from multiple side effects including pelvic pain, dysparenuia, bleeding ,vaginal drainage, lower back pain, vaginal pain, exposed vaginal tape, chronic myofascial pain, muscle spasms, buttock and hip pain, anterior leg pain, posterior thigh pain, lateral hip and thigh pain, dysethesias, fatigue, and her stress urinary incontinence failed to improve,” the complaint says.
Carol was also forced to leave work, she hasn’t worked for two years and the family had to sell their two-story home so she could have a master bedroom on the first level. Prior to her mesh implant Carol was reportedly training to run a marathon and was in excellent emotional and physical health.
Baer says most of the cases so far have named Ethicon, a division of Johnson & Johnson with its Canadian offices in Markham, Ontario and a wholly owned subsidiary of Johnson & Johnson located in Somerville, New Jersey.
The complaint says the defendants have continued to manufacture, market, and sell and misrepresent their pelvic mesh products while continuing to fail to adequately warn, label, instruct, and disseminate information, even though the company knew or should have known about the risks of severe injuries and complications.
J & J began marketing and selling Gynemesh in October 2002 in Canada and Prolift in or about September 2005 and Prolift+M in or about May 2008. It was recently reported that Prolift was sold by J &J for three years without FDA approval. Background story here.
Loser Pays in Canada
As far as an award there is a point system with the individual’s degree of injury awarded a plus or minus points. Even if a person is in a class, they can opt to do an individual action however beware – Canada has a system where the losing side has to pay the court costs and fees of the prevailing side – within reason. That can amount to more than the case was ever worth!
“That is a big disincentive to filing your own case,” he says.
Canada has about one-tenth the population of the U.S. so it expected that women injured by the big four mesh manufacturers – Ethicon (Johnson & Johnson), American Medical Systems, Boston Scientific and C.R. Bard – will represent a number one-tenth of the litigants in the states.
Baer says before the news story that ran on Canadian television last week the firm had 15 clients. Immediately afterward, 150 more women came forward and another law firm announced it too was taking cases.
Baer asked MDND not run the entire lawsuit in that other firms may borrow from the pleading. #