500 Women Have Ethicon Mesh Cases Dismissed

//500 Women Have Ethicon Mesh Cases Dismissed

500 Women Have Ethicon Mesh Cases Dismissed

Mesh Medical Device News Desk, July 24, 2018 ~ At one time the multidistrict litigation (MDL) had more than 104,000 product liability cases filed over allegedly defective pelvic mesh. Johnson & Johnson and its Ethicon division were the largest among seven mesh makers. 

But women who never had their mesh removed will not be marching forward with their cases, at least for now.

Image: Judge Joseph Goodwin, So District WV 

500 Women Dismissed Without Prejudice

Judge Joseph Goodwin, who, for six years has overseen pelvic mesh litigation from his Charleston, West Virginia federal courtroom, on July 19 dismissed 500 women from the Ethicon (Johnson & Johnson) roster. The notice does not appear with the Judge’s orders but was placed in each individual case electronically.

They will not be dismissed permanently.

Women who have not had their Ethicon mesh removed (revised), will have the defective product cases dismissed without prejudice. They will have five years to refile their cases against Ethicon and Johnson & Johnson, if they do decide to have a mesh revision or removal.

Judge Goodwin, has made it very clear he wants to pare down the list of 104,000 cases in his court – the largest mass tort ever filed in one courtroom.

Ethicon is the mesh maker with the most cases before Judge Goodwin and 55,000 if you consider the global count of women who have filed defective product lawsuits against the healthcare giant.

The latest order removes just Ethicon cases.

Prolene Mesh

MESH IN PLACE

Last spring, Ethicon announced it would no longer compensate women with a “mesh in place” from its TVT line of products used to treat stress urinary incontinence (SUI).

The reason?  The medical devices  were still on the market and in fact, a well-compensated medical society refers to these mesh devices, used to treat SUI as the “Gold Standard” despite the fact that they have been found to be defectively designed in a court of law (Huskey).

Standing firm, Ethicon motioned the court for Judge Goodwin to sort out the  “mesh in place” women.

The reason she had not undergone a mesh removal didn’t really matter.

Maybe she had died and her estate was carrying on her claim.  Maybe she could not undergo anesthesia because her health had deteriorated.  She may be fighting cancer. Maybe she was deathly afraid of any more pelvic surgeries.

Maybe the mesh wasn’t causing her any problems or not enough to undergo sometimes brutal surgery.

Any “mesh in place” Ethicon case on the attached order filed July 19, would be dismissed “without prejudice,” meaning it could be refiled if she ever did attempt a mesh removal within five years.

The upside for the judge, who was age 76, was that he would be one step closer to retiring and ending the nightmare of 104,000 women before him, all wanting their day in court.

ETHICON ORDER

Last March, Ethicon motioned the court (ECF 5313) on how to rid itself of non-revision cases.

Executing the plan came from Judge Goodwin April 13, in the form of Pretrial order #293.  First it defined the Ethicon Gynecare TVT marketed products that the order covered:

Gynecare TVT Retropubic (TVT) or Abdominal (TVT-A) System, Gynecare TVT Obturator System (TVT-Obturator), Gynecare TVT Abbrevo Continence System (TVT-Abbrevo), and/or Gynecare TVT Exact Continence System (TVT-Exact), (hereinafter collectively “the Ethicon Gynecare TVT Products”).

Even though some of these products had been litigated successfully in favor of the plaintiff, those had been revision cases. Judge Goodwin thought rather than lingering in the MDL for years, a future revision might eventually set a much-needed value for the case.

“The court is well aware of the issues in this litigation and believes there is significant value to the plaintiffs who have not undergone a revision surgery not being required to go forward with a case at this time when there is the possibility that they could be at risk of a surgery in the future.”

 

DISMISSED CASES

L.T of West Virginia is one of the 500 women who has had her case dismissed.

She was implanted with the TVT –O September 1, 2010 by Dr. Connie Perkins at Greenbrier Valley Medical Center in Ronceverte, WV.  An unnamed “friend,” who answered her phone, said she has opted not to have her mesh removed. In fact, because it was not working and incontinence had returned, she opted to have another mesh implanted last May.

Judy Perry, now Tuckette, lives in West Virginia and was implanted with a TVT-O (“TVT-Oturator” is misspelled in the prefab short form), on June 24, 2008 at the Charleston Area Medical Center, by Dr. Uzay Yasar.

There is some pain but not enough to require surgery” she tells MND.   

She reserves the right to have some form of revision within the five years of dismissal.  She knows it may be necessary.


OTHER QUALIFYING PROCEDURES 

While Ethicon limited a refiling to a “medically necessary Revision Surgery,”   Judge Goodwin broadened the definition of “revision” surgery offering other “qualifying procedures” that could substitute for a full mesh removal.

For purposes of this order only, Ethicon agrees that plaintiffs who, although their treatment does not qualify as Revision Surgery within five years after the election, have more than one (1) in office revision of the mesh and who also have concomitant treatments of trigger point injections, vaginal physical therapy or utilization of vaginal Valium, that are demonstrated to be necessary by 6 contemporaneous medical records and that are performed by a competent, licensed physician who is neither retained nor funded by a plaintiff’s lawyer or a litigation funding entity for purposes of performing such procedures or treatments, nor where the litigation funding company has a relationship with the physician or the facility (or any related entity), will be treated the same as those plaintiffs who have a Revision Surgery within the five year period, as described above; however, the applicable statute of limitations shall begin to run upon the completion of the second of such multiple qualifying procedures.”

Each of the non-revised plaintiffs who does not wish to dismiss her case has until July 30th 2018 to complete a Plaintiff Fact Sheet and document any lost wages, medical expenses, all medical records, including five years before the TVT procedure.

Nine of the 500 women were among the 150 plaintiffs set for trial in Charleston before Judge Goodwin August 14, part of the Wave 7 of women who will have their Ethicon cases tried at the same time.   ##

LEARN MORE:

Pretrial Order #293, April 13, 2018  
https://www.wvsd.uscourts.gov/MDL/ethicon/pdfs/PTO_293.pdf

Mesh News Desk, Judge Goodwin to Dismiss Thousands of Ethicon Non Revision Cases, April 11, 2018
https://www.meshmedicaldevicenewsdesk.com/breaking-judge-goodwin-to-dismiss-thousands-of-non-revision-ethicon-mesh-cases/

 

By | 2018-07-27T11:15:07+00:00 July 24th, 2018|Legal News|16 Comments

About the Author:

I’m National News Editor, Jane Akre and I began Mesh Medical Device News Desk aka Mesh News Desk (MND) in the summer of 2011 just after the Food and Drug Administration issued an explicit warning to the public that complications associated with surgical mesh used for prolapse repair (POP) and incontinence (SUI) are NOT rare! That was the starting point for the litigation you see today and thousands of lawsuits have been filed by women whose lives have been altered, some permanently, by the use of this petroleum-based product.

16 Comments

  1. Payton July 25, 2018 at 3:32 pm - Reply

    Hi Jane , so does this mean that if you have pelvic floor therapy , trigger point injections Valium suppositories etc. that this is counted as a form of revision durgery . Do you know if the other manufacturers are going to follow this lead and consider thise as revisions also or is this just for Johnson and Johnson . What about women who can’t hsve revision surgery for health reasons where does this leave them .

    • Still standing July 25, 2018 at 11:33 pm - Reply

      That is not exactly how this reads. First, your have to have had more than one in office revision, that means that mesh was trimmed or there was a suture erosion. So, 2+ office revisions plus any of the other interventions listed above ( valium suppositories, physical therapy….just physical therapy or the other non-revision treatments will not count as a 1-revision tier unless there is mesh trimming etc. also, the statute of limitations for filing starts as soon as you have two,qualifying procedures. I dont think this reads that each trigger point or using suppositories will be counting as substitute for surgery because they are not. instead, they will help you quality for a tier one award if you also have two or more in-office revisions.

  2. Bejah Butterton July 27, 2018 at 9:53 pm - Reply

    Hello all, I write FM my phone, no computer at present…as many of you know I went to three experts about removal. I was told the surgery would kill me. My kidneys are malformed and are in my pelvis. I feel now no one is helping me. I am still fighting though. I thought 15000 cases were dismissed. Mine better not be one of them. Where can we read the names. Hi Jane, I will be calling you. I just went for pelvic floor PT. They said it seemed likeesh migrating. Can we have a discussion about pelvic floor PT? Love to all. Bejah

  3. T C July 28, 2018 at 1:17 pm - Reply

    Hi I’m T C I have been through 4 surgeries and still in pain. I can’t even get the help I need now because of lawsuit. I hired another attorneys to find out they are in cahoots with the old ones and have put my case in a Global ligation and trying to force me to settle out of a jury trail. I have three kids and have two weeks to refile I. Courts and they say they can’t do it . Where is some help. I need answers my life is a living pain. Can some one call me. 404.644.4493. So much to tell couldn’t possibly text it all.

    • Still Standing July 29, 2018 at 5:37 pm - Reply

      TC, one more thought. New cases are not being filed in Charleston, WV. Any new case you file needs to be in the manufacturer’s home state or in yours, so you need attorneys who are licensed to practice in one of those states. A supreme court ruoung last year established new rules for filing civil ltigation complaints.

      • Jane Akre July 29, 2018 at 9:39 pm - Reply

        Your attorney can always partner with firm in the desired state,,, co-counsel. Let’s say your law firm is in texas, you live in Missouri and your manufacturer is in New Jersey. Your law firm can find a local firm in Missouri or New Jersey to co-counsel with to bring the case forward… happens all the time.

  4. Still Standing July 28, 2018 at 5:49 pm - Reply

    TC, unfortunately, most all of the cases will be settled, especially at this late date. If your lawyers thought you had a strong jury case, they would be looking at that option. If you are on your second set of attorneys, it may be hard to find another firm to take up your case. Both of your attorneys now have a right to be reimbursed their expenses out of your future award unless they fired you as a client and that is going to come out of your case expenses.and your final cut. Adding a third firm will cut out of that , too. Not what you wanted to hear, but it is the reality of what you are dealing with. Here is the question to ask your current legal team: are you willing to refile my case? If the answer is no, you are probably out of ootions except to settle for the amount they have brought forward to you, if they have.

  5. Tray July 29, 2018 at 4:06 pm - Reply

    They have fired me because they can’t take it federal they knew this before they took case. Other attorneys let me go without any charges. I have these statements text and email they said they were refilling in june

    • Jane Akre July 29, 2018 at 9:41 pm - Reply

      Tray, you can give me a call if you with Monday because I’m not sure what you are saying…. thanks ja 904-613-2828… or janeakre@meshnewsdesk.com

  6. Q July 31, 2018 at 5:30 am - Reply

    How is it legal that wave 7 cases get a trial before cases of of earlier waves?

    • Jane Akre July 31, 2018 at 10:38 am - Reply

      Earlier cases may be in the “settlement mode” whether they settle or not… it does not go strictly by date of filing,,,, however, I’m not a lawyer so that is a good question for yours.

  7. Lumni August 10, 2018 at 10:52 am - Reply

    They just send me package offer which I’m not happy with and you don’t have choice just to settle lawyers wants to take 40% and courts 5% like they are the ones going through pain and suffering this is crazy.

  8. Lumni August 11, 2018 at 11:11 am - Reply

    Sad sad sad what is happening with us I received package I’m mail last week to settle I have one surgery they offer me 45 thousand after everything. I’m going to walk out with half still in pain still I have mesh on my body. I called that 800 number I want to talk to my lawyer to see if they going to take list 33% like normal lawyers do and pay that 5% in their experience I feel I’m the one who got sliced open twice not lawyers to get more then we do. I got in argument with those people he was telling me you have to pay 40% for lawyers this what you sign for. My case never been filed to court why I have to pay 40% he said because your mesh is still on market lol I told him how is working for them sense still is in market people like you supporting them that’s why not because is working. I’m just so stressed out I’m glad In other side I still work have good job and good insurance so I can take care myself but I feel bad for everyone out their they didn’t have this chance you want to say fight you can’t fight because they don’t care still waiting in lawyers to call me my deadline is August 31 to return that paperwork back to them. thank you Jane for everything you do for all this women’s out their god bless you

    • Jane Akre August 11, 2018 at 5:16 pm - Reply

      I’m sorry you are in pain…. look at your retainer agreement. It will have the percentage. You may want to negotiate down the 5% since Judge Goodwin did not specify who should pay that……

    • Still Standing August 12, 2018 at 11:42 pm - Reply

      Lumi, I just want to caution you about discussing your settlement amount online or with anyone besides your spouse or your attorney or financial advisor. That is strictly prohibited in settlements. Im sure your settlement package states that specifically. Revealing the amount could void your settlement award. Even if you post under an assumed name, you do leave a digital footprint. These companies have people who search the web for this kind of thing constantly. While you are free to discuss mesh in general, you cant reveal the particulars of your specific case. Just be very mindful of that going forward.

      As far as the attoney and the percentage, if you signed a contract for 40%, that is what you are obligated to pay. The attorneys did not cause your injuries.they are providing a legal service for free until a settlement is reached. While there are for sure opportunistic law firms out there, plaintiff attorneys only get paid if you get paid. Until then, it is their expertise, staff time and other case costs that they take on without a promise of a pay out. Not filing your case is a common practice in civil litigation. It keeps your case costs down and the defendants dont get to engage in discovery about you until a case is formally filed. This is a good strategy if you have things in your medical records that could help them make an argument that something else caused your pain and believe me , they look at everything in your medical records back to your teens. There are many things that go on behind the scenes of a civil lawsuit that those of us who dont have a law education dont understand. It is a bit of a chess game and crap shoot combined.

      You do have the right to speak with your attorney before you decide to accept or reject the offer. It may help you to write down your questions and ask those in a calm voice. They respond to insulting remarks just as we all do and that will just get in the way of your right to have them answer your concerns respectfully. While you cant renegotiate your contract with them in hindsight, you can ask for a courtesy copay of the 5% MDL fund. Mine paid 4% and I paid 1%. I didnt ask, they just did it, but It is a reasonable request,. However, there is nothing that compels them to do that.

      • Jane Akre August 13, 2018 at 10:14 am - Reply

        I echo what Still is saying. I’ve heard from women who are deposed they are asked everything they have posted online… Women have even been asked specifically about Mesh News Desk and me. I encourage you to use a pseudonym but even that will not protect you if they want to find out who you are. There is nothing the defendant won’t do to find out your supposed misdeeds including stalking you online so be very careful please.. Do not reveal anything that could hurt your settlement!!!

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