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Ethicon on Hot Seat in California Courtroom Perry v Ethicon Begins

Abbrevo from Ethicon brochure

Abbrevo from Ethicon brochure

This is the second trial so far this year that puts healthcare giant Johnson & Johnson and its medical device subsidiary, Ethicon, on trial over its controversial polypropylene pelvic mesh.

In this case, Coleen Perry, 50, was implanted with the J&J/Ethicon Abbrevo mesh sling to treat her incontinence on March 23, 2011.

The Abbrevo is still on the market.

Injuries from the Abbrevo include, but are not limited to, “mesh erosion, contraction, infection, fistula, inflammation, scar tissue, organ perforation, dyspareunia, blood loss, acute and chronic nerve damage and pain, pudendal nerve damage, pelvic floor damage, chronic pelvic pain, urinary and fecal incontinence, and prolapse of organs.” 

Her trial is being heard in Bakersfield, California, the same state venue where Christine Scott won her pelvic mesh lawsuit against C.R. Bard in 2012. See background story here.

[Coleen M. Perry and Patrick Perry v. Hung T. Luu, M.D.; Johnson & Johnson, a New Jersey Corporation; Ethicon, Inc., a New Jersey Corporation; and Does 1-60.]

Mesh Medical Device News Desk (MND) is following the trial through a streaming video feed provided by Courtroom View Network!  Thank you!  Images from CVN will not be allowed to be posted on MND.

Case 1:13-cv-00729-AWI-JLT 

Judge Lorna Brumfield, Metropolitan Division, Superior Court of California, Kern Co.

The complaint (Perry Petition PDF) lists seven causes of action, including Failure to Warn, Design Defect, Negligence, and Loss of Consortium.

The actions include a medical malpractice claim against Dr. Hung. T. Luu, the gynecologist who implanted the Abbrevo in Ms. Perry; and an action against the sales force that sold the Abbrevo, the “Does 1-60” so named because not all of their identities are known. They are accused of “deceptive advertisements and high-pressure sales techniques,” according to the complaint.

Mesh News Desk cannot show images of those appearing in this trial or quote from what is said for the purposes of displaying it on social media.  

The Plaintiff

Ms. Perry had the implant March 23, 2011, in Bakersfield, California at San Joaquin Community Hospital. She had her first revision surgery January 17, 2012 to correct mesh erosions.

She lives in Tehachapi, California, 35 miles East/ SE of Bakersfield. Her husband, Patrick, has been a firefighter in Los Angeles for 32 years.    Ms. Perry had done restaurant and catering work. She later went to cosmetology school.

She was a healthy woman with normal female issues, it was established on the first day of this trial including, excessive bleeding, increased blood pressure, weight gain, and high cholesterol. As a treatment she relied on exercise and diet and did not take medications.

To treat a heavy menstrual cycle, she had a cryoablation, but had no surgery before that.   She smoked one to four cigarettes a week socially, no more than 10 a week said Mr. Cartmell. She and her husband liked to hike, run,  walk and do yard work. She did yoga.  At first, Ms. Perry used pads to correct her stress urinary incontinence in 2008 and 2009.  She reports she never lost the pain after the Abbrevo implant and having sex felt like glass poking into her vagina. Her husband felt something which turned out to be a mesh erosion.

Lawyers

Thomas Cartmell, Wagstaff, Cartmell

Thomas Cartmell, Wagstaff, Cartmell

The same law firms and  lawyers trying this case for the plaintiffs –Matthews & Associates, Freese & Goss, Peter De La Cerda, Tom Cartmell – won a $1.2 million verdict (Batiste case here)  against Johnson & Johnson in a transvaginal mesh sling case tried in Dallas last year. Stewart Albertson of Albertson & Davidson LLP is local counsel.

Kim Schmid, Ethicon attorney

Kim Schmid, Ethicon attorney

Later this morning an attorney for defendant Ethicon, Kim M. Schmid, (of Bowman and Brooke LLP of Minneapolis here) listed the pre-existing conditions that affected Ms. Perry- prolapse both stress urinary and urge incontinence, the fact that she smoked, had high blood pressure, allergies, and that she had not held a full-time job since the mid 1990’s.

Other attorneys for the defendant include William Gage and Burt Snell of Butler Snow LLP and by Soo Lin and Joshua Wes of Tucker Ellis LLP.

38 Comments

  1. Michelle A. says:

    This is the same exact mesh that was implanted in me in 2011. I am curious as to how this will turn out. I was working 2 full time jobs. I had to quit 1 because I was hurting so bad. I can’t even think about how my life has changed, the quality of my own being has been ripped away from me. I cry almost every day because I can’t do things that I did before. I am praying that this woman gets everything she needs and more to make her comfortable. God bless her and her family.

    • Jane Akre says:

      The defense is doing another job on the plaintiff… attacking her credibility …. she is obese, smokes,, hasn’t worked in 20 years etc. etc….. Where have we seen this before? BTW- please do not smoke if you file a lawsuit.. IT WILL count against you besides it is known to weaken tissues….

      • Amy G says:

        Jane, did you really mean to not smoke if you file a lawsuit or were you being a smarty pants? 🙂

        • Jane Akre says:

          I mean that will be counted against you, very much so. Smoking weakens tissues. A study was published on it- at least one that I know of and you will see that in court. Also being obese is something that the defendant will use against you, just like pre-existing conditions. If you had problems with dyspareunia prior to the mesh implant, that too will be counted as something you had before mesh. This case is very similar to the Carolyn Lewis case in terms of lawyers handling it and the witnesses they plan to present.

          • Bev says:

            Double edge sword. If defendants attorneys argue smoking, obese, ect then they should have warned against using mesh as not being suitable for that patient.

            Since those conditions did not prevent doing operation then the arguement is muted.

          • Bev says:

            The best argument is her lack of employment. That reduces damages dramatically.

          • Robin Herzog says:

            Jane is right ladies. I just got asked by my lawyers about J&J wanting to know all my medical issues prior to the sling. I didn’t smoke, was not overweight, never took any meds, was a weigh lifter, healthy vibrant sex life, worked 30 yrs, etc. I told my attorneys I would be happy to be a witness, I know the truth and not afraid of going on the witness stand to get us all justice. Jane let me know the next trial date in WV cause I want to be a back up or available to go so know more delays. I hope! God bless and hang in there everyone. Plus they will be looking at our social media including FB etc. Do not say anything that is not truthful. If its the truth you do not have to have a good memory. Plus I didn’t know you could sue the Dr who put it in? I know he didn’t have much knowledge on the product or procedure. I was told nothing, no warnings etc. Send me an email Jane if you go to WV in March. I think we should all go if possible and take a damn stand outside and inside the courtroom and give the plaintiffs support. Birds of a feather flock together. Maybe the judge and jury will see we are tired and sick of this bureaucratic bs that is probably an underlying source for J&J not to settle. Just my opinion!

          • Jane Akre says:

            Robin- There is actually a Bard case coming up in February I just found about about…. dont know for sure about the one in Austin…
            I can’t keep going to these for my own financial safety….. so I would appreciate the help…OR donations! Thank you. (Not if you are injured and not able to….okay?)

            Debra Wise v. Bard, February 18, 2015, Charleston –Garrard, Edwards??

            Rabiola v Ethicon, February 23, 2015, Austin Tx – Matthews and Assoc

            Bellew v Ethicon, Charleston, WV – March 2, 2015 – Ben Anderson

            Boston Scientific trial in Delaware – May 4, 2015 – Motley Rice

    • Jeff Puckett says:

      Thank you Michelle, Coleen is my sister and I have hated seeing her have to go through this. Hopefully you will see some resolve to your situation as well. Thank you for your prayers!

  2. and those are all the conditions that should have been strong contra- indications that mesh would do more harm than good! If doctors knew the truth, knew the inflammatory properties of mesh, the allergy indications that warned of imminent foreign body reaction perhaps the doctor would have said “we can’t fix you with mesh!” failure to warn is damned right ….. the things that can possibly go wrong are minimized and in the smallest print …. and do not say that mesh under foreign body reaction processes does not remain inert…. where is the degradation warning!! where is the toxic chemical leaching warning!

  3. Mesh Injured says:

    This is why the jury should know the number of injured. It seems like the plaintiffs have more freedom with what is allowed. Her physician should have been aware of her condition and habits prior to implant. Something she should have been informed of.

  4. Mesh Injured says:

    i meant *defendant* not plaintif 🙂

  5. Karen says:

    It seems that is your over weight, under weight, employed, not employed, physically over active, physically under active, smoke, drink, under active bladder or over active bladder, good sex life, bad sex life ect. it will be used against you. Take a non smoker with the same product as the smoker, and both had mesh that eroded , infection needing a revision then left with nerve damage…..It is all a tool to knock you down a little more.

  6. Disgusted says:

    I keep being told they are “just doing their job”. They have to get everything they can on us. They will attack credibility in any way they can. It is a dirty business. It is much like the rape victim’s sex life becoming the point of the trial. Their point is to win at any cost. Another way to show that they really don’t care and money is the bottom line. If they followed their credo, the products would be off of the market, they’d be paying what we need and trying hard to fix what went wrong. It is an old ploy to blame the victim. Hopefully the jury will see the truth.

  7. Aaron Leigh says:

    As usual, Jane, thank you for front-running the proceedings so we have the opportunity to become more educated. THANK YOU!!!

  8. kitty says:

    I don’t remember the name of the young woman (mesh victim)

    who was a hiker and skier. She was too slim and active? either your too fat or too trim. This is a hippocritical farce.

  9. ana says:

    After, two mesh implant I just got cortisone hip injection. The pain in my left side was so bad i couldn’t even go up the steps. I had told you in the past that in the doctors report I was told I would have a revision, instead they placed another one. My case worker told me that sometimes if the report don’t state the problem is mesh related I might not have a case. I have realized that it is rare that any doctor would tell you is mesh related they have no idea what it feel like. My gynocologist says she doesn’t know, my orthopedic doctor says he dosn’t think so. But only i know what i feel the hot burning pain in my pelvic area, the severe pain in my groin and the horrible pain in my hip, amoung other things. I know I am a smoker but I also, know that women who have not have mesh implant and smoke don’t deal with my agony. I don’t know if them punturing the left side of my bladder has anything to do with this, but the pain always feels worst on my left side. I think there will always be denials, and we will never really get the justice we deserve. We are the only once that know the feeling.

  10. msm says:

    Wait a darn minute !

    Does this mean that women who chose to not work for a pay check and stay home to raise children (used to be the norm) is any less injured than a woman employed outside the home? Does she not have a right to life like everyone else. What about the self-employed or temp workers? How does employment play into damages and compensation for losing the joy of life?

    • Kitty says:

      right on msm good to hear from you! I am not a smoker and I have steroids into sacral area pain is into the hip and down the leg. I am going into labor at times—but no baby in site.

    • Janet B says:

      I’m in the same boat! Chose to give up my full time job for a number of years to raise our 4 children. I was 40 years old, and just back in the workforce for 2 years when my bladder prolapsed while I was out for my daily run. I was told that the mesh sling surgery was my only option, and not warned of any possible complications. In fact, my doctor said I was “the healthiest person he’d ever done a sling surgery on.” And now, five years later, I’ve gone through 7 surgeries to deal with mesh and the problems it caused. I live in constant pelvic pain, can’t sit at all, can’t have sex, can’t go back to work, and have to go to pain management monthly to get the multiple meds I need to keep the pain tolerable. Even though I didn’t work for those 15 years, I raised four very fantastic kids who are contributing members of society. But because I wasn’t in the workforce long enough to get enough work “credits” I don’t qualify for any type of disability. It has been a huge financial hit for us. With 2 kids in college and 2 in high school, my part-time income was supposed to cover their college costs, and now they are saddled with huge student loans because we can’t help them. These $40,000 settlements are a JOKE and I will not accept that insulting amount, especially now that I’m learning that accepting the settlement may require that we give up our right to have insurance cover any future medical costs. My medications alone are $1,000 a month, so it would be a terrible financial decision to accept a settlement. Even with only working part-time, 25 years of lost income would be almost $500k. Then add medical expenses (another $500k). And that’s not even counting pain and suffering, loss of consortium for my poor husband, and all the other expenses this has caused.

  11. ana says:

    My husband is on disability, I have a sixteen year old thats going to college next year, if I don’t go to work every morning how would we survive. I would go to work even if I had to crawl ,I have no choice, that dosn’t mean that I do it without pain, lots of pain medication, but I do it ,

  12. Karen says:

    msm my exact thought too, what does her work history have to do with any of this. Makes me sick hearing this kind of stuff. If anything loss of income is off their plate.

  13. Karin Lee says:

    If smoking, obesity, high blood pressure or any lifestyle choice or preexisting condition predisposes the mesh to fail, then the patient should be warned or advised against it. If mesh is unsafe for smokers or overweight people, the manufacturer should note that and physicians should warn such patients. If they did not mention smoking, sedentary lifestyle or obesity as a risk factor, how can they justify bringing it up NOW? You cant tell someone lack of a job outside the home or tobacco use or a weight problem suddenly makes it THEIR fault the product failed unlese the company warned them prior to implant and I am certain they did not… She was probably told it was completely safe and she was an appropriate candidate for surgery. It is so not even fair to bring this garbage into the trial at all

  14. Karin Lee says:

    How cool it would be if the people self righteously defending the mesh had to spend a week suffering the after effects of a prolift. They would change their tune.

  15. Pam says:

    I feel very sorry for Kim Schmid and Christy Jones. It must be a terrible way to spend your life hurting women who have already been through so much pain. I’m sure that they probably have families that they must support but I don’t understand how they can hear our stories and stand up for the mesh companies. It must be like poison to their soul. When I sit on the stand I want to look Christy Jones in the eye and say I have had terrible pain but I feel sorry for you. I know they will do everything they can to make us look bad but I know we have the angels sitting with us. I’m afraid that these trials will drag on forever and we will have no outlet for our anger. I keep telling myself to focus on my husband,my kids,my friends, so that I’m not consumed with anger and I can find some emotional peace. I will pray for all of you who have suffered in so many ways from this terrible mesh.

    • Jan Urban says:

      This is outrageous!!! What an insult of our intelligence and civil liberties. Most or all of us would not be in this mesh agony if we were warned or told about the side effects. The fact is we were told very little that it was a out patient procedure. Some people because of heredity genes and all that are prone for blood pressure, cholesterol etc. I did not have any of these conditions until after menopause. It didn’t matter whether I smoke or didn’t. tried it both ways. All my other medical procedures were discussed with me thoroughly and had to watch a dvd and read info prepared by the medical device manufacturers and then sit down again to discuss the procedure with any questions I had before proceeding. How can they get away with this? Did any of these devices have patient promotional brochures, DVD, about the medical devices? To my knowledge, NO. Who should of warned us about not smoking, I was just warned verbally and in writing if stents were placed in my heart I could not smoke. I also was told about and given a brochure on the Starclose vascular closure system a medical device to close the femoral artery and is a registered.device. It has been on the market since 2005. My Interstim implant, Brochures DVD discussions, warnings, Cataract surgery both eyes, Brochures DVD discussions, warnings. Were they available to patients? Were there warnings in writing. The only thing I gave permission for was permit to operate which did not list any warnings nor did my instructions after the implant.unlike my other medical devices that clearly lists them. And as far as not working outside the home. Holy cow. As homemakers listing a job description and the skills needed for this position is endless. If we were paid a salary how much would we be worth? Our lives have been ruined by these experimental mesh devices which is a violation of the laws on human experimentation. These devices were never tested or had any trials of significance to determine the adverse effects of smoking, weight, etc. So how can you bring up preexisting conditions? Where is the defense getting their data from? Did any of you receive informational materials about your mesh devices? These conditions and warnings would have cut into there bottom line, if there were warnings. What do you think the % of woman who smoke or who are over weight, high blood pressure and have cholesterol issues that were implanted with these devices? we would never have been offered this treatment option? Where is our defense? Objections, this should not even be presented into evidence. I thought these were “The Gold Standard” of treatment devices, one size fits all….. How can they have their cake and eat to….???????

      • Jane Akre says:

        What do you wish you had been told? What would you tell others?

        • Robin Herzog says:

          Hi Jane I will go to the one in west Virginia. The bellew vs ethicon. Maybe some others can take some too. I think Jane deserves the help or donations for all the work she has done. Send me an email Jane and then I can give you my phone number and we can talk about what is expected for these trials. I want to help and ladies Jane cant do it all. We must all bear some burden. I live in Ohio but I can make a 4 hr drive. Ladies see if anyone can help on the other 3. Jane I will pay for the hotel if you want to share a room. Not sure where you live? But email me and we can talk more. Thanks again for everything you are doing for us. Robin

          • Jane Akre says:

            That’s great Robin. You will not regret going…. the lawyers really do work very hard, despite the cynicism some have against lawyers. The lawyers for industry are very interesting to watch… the Opening Arguments…. top evidence (if there is any)…..the positioning that must take place….Did they prove defective product, defective in its manufacture… is the doctor accused of medical malpractice? Judge Goodwin is very sharp… Not much gets past him. I was thinking of going to the Wise case Feb 18… the Bellew case in March will be great with Anderson and possibly Slater. we can talk…janeakre@meshnewsdesk.com THANK YOU!

        • precious mesh says:

          That the product cannot be removed. That it would cause my bladder to adhere to my vagina. That I would have to LIVE with daily excruciating pain. That my flesh would literally tear instead of move fluidly to expel waste. That my vagina would become grossly stretched from

      • Robin Herzog says:

        All the time that is put into one post should be sent to your state Rep and senators. Congressman etc. How many of you filed an FDA claim to have changed to a level 3 which would require testing. Don’t take your pain out on Jane she is just the messenger? Please vent properly and respectfully. I know I have written for the FDA to change when the info was given to us. Ladies we all live in different States, countries, different levels of pain, injustice, loss of $$, loss of life, marriages etc. We must stick together. I say anyone affected by J & J be at the WV trial and we can home a rally also outside the courts, make signs and show our support to the plaintiff as she will need strength. Email me at cleveland_browns43342@hotmail,com if you can come show your support and I will organize it. You must be able to pay for your rooms but we can bunk up 2 to a room. Let me know and I will talk with Jane. Anyone in?

  16. kitty says:

    What does high blood pressure have to do with a plastic gadget coming thru the vagina. AND—what does smoking have to do with pain in the A__.

  17. Jan Urban says:

    Jane, Hind sight is everything as the saying goes. A light bulb comes on as you think back and go over and over how you let this mesh device into your body? This what I would redo. Do not agree to any procedure that you have no knowledge of, asks questions, be skeptic if there is no Printed Patient Information Guide by the manufacturer. for a medical implant device ask for one, these guides further your ability to make an informed decision assisting you with product information, how the procedure is done, after care, home instructions, adverse events and warnings as guidelines. Easy to understand which helps you ask the right questions. I would say: If there is no Printed Patient information Guides for a Medical device a Red light should come on and you should turn around and leave. Just say no! If I had a patient information Guide about my mesh device implant and how it is surgically placed. I would have asked more questions. I feel like the whole process for this mesh medical device was disguised and very carefully, upbeat an a matter of fact. Dr. says ” I can fix that.” SUI . You trust this Doctor you have seen for years and you get played.

    • Robin Herzog says:

      We all got played. Now what are we going to do about it? Just sit back and write posts. I’m personally sick of it. I think we should all write to our state politicians, president, Dr. Phil, FDA The drs and anyone else you can addresses for. Lets quit sitting around for our attorneys who will take 40% of whatever we get. My niece just got her settlement and ended up with $1800. Woop de do! Not sure the company but that is a slap in the face. Lets not wait for that! Anyone? Ideas? Addresses? We can make one letter for each to use to send to these people but we need commitments girls!

      • Jan Urban says:

        That a Girl Robin. Go for it…. I spent several months writing to Legislators, TV , Newspapers, Magazines, Medical News, etc etc. I write the president each week….followed up on all several times. It was a dead end. I haven’t a clue why this horrific Mesh medical device is hands off, off limits, pushed under the table. It is bigger then us (67,000 cases) effecting women worldwide and to be able to suppress it from the mainstream media for this many years is hard to fathom. But you are right about posting. I am going to stay away for it stresses me out reading the horrible effects breaks my heart and my heart is in a crisis now. Thank you all….

        • Robin Herzog says:

          Wow Jan thank you for writing to different levels of gov., media, etc. I too have been disregarded by thoses members also. There was a woman senator in Texas that was trying to help take this to a higher level and hold the FDA accountable. Has anyone sent a request to reclassifying the mesh to a level 3 for testing in the future? I am curious Bc I did and got an asssigned number but it is not in the system? I do not want everyone to clam up Bc you are afraid to hurt your cases I just know we have to keep social media use as honest and supportive to everyone. Jan I admire your strength and I would like to know your key addresses and who you have contacted. We need to have a strategy of how else to get this to the forefront? You can email me and we can talk. God bless everyone who has suffered from the mesh but do NOT suffer in silence.

          • Kitty says:

            To me telling women not to post is akin to bullying. This is where I go for moral support. I will not be bullyed into not posting. I will send Jane donations as I am able to do.

          • Robin Herzog says:

            Good for you. That’s what me want is too rally up and take a stand. I know the lawyers are wanting to know if we have facebook accts (j&j) which tells me they are trying every angle to bully us. I just wanted to let everyone know keep things truthful and to the point of how we have suffered at the hands of these damn pharmacuetical companies. I am going to the Bellew case and I will my sign on poster boards made up with MESH and a circle and line thru it. Who was doing the buttons? I said I would pay for the first 200 but not sure how long to get them. Was that you Kitty or Linda?. I will send the money to Jane’s medical news desk as a donation or I can send you a check. I would like to have some women show up for the WV on Mar 2. I’m tired of writing about it I’m ready for a rally outside the courthouse before and after each day of trial. We can wear the buttons and each make our own poster board. The shirts will have to come later I want to see a big turn out for the Bellew case. We have alot women in Ohio. Lets do this! Damn it I’m tired of these lawyers walking allover the plaintiffs. Lets show her our support. Call me or text me your name if you can be there 740-972-1885. Whoever wants to do the buttons call me. How long will it take? Who’s in?

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