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Adkins’ Pelvic Mesh Trial Will Revisit Damages, Despite J&J Win

TVT-S

Mesh Medical Device News Desk, August 7, 2017 ~ Johnson & Johnson won a pelvic mesh trial in Philadelphia on June 9th, the first after four other pelvic mesh trials awarded damages to the mesh-injured plaintiff.  The case isn’t over yet.  

Kimberly Adkins was the first plaintiff in the Philadelphia Court of Common Pleas to lose her pelvic mesh trial against Johnson & Johnson and its subsidiary Ethicon.

Now she getting another bite of the apple.

Philadelphia Court of Common Pleas

On July 19, Judge Michael Erdos granted her motion for a new hearing limited to damages, specifically on design defect, contending the jury findings were against the weight of evidence and inconsistent on whether the TVT-SECUR (TVT-S) pelvic mesh caused her injuries.

What this unprecedented ruling means and how it will play out is uncertain to both sides, according to a rash of documents being filed in the case (No. 130700919).

Will a new jury be convened for a new trial or will the issue be heard by a judge?  If so, how would a jury understand enough of the nuances of the case to award damages?  Will punitive damages be on the table?  These questions are, at the present time, unanswered. 

 

Dr. Bruce Rosenzweig, expert for Adkins

WHAT WE DO KNOW 

On June 9, after a three-week trial, a Philadelphia jury concluded Ms. Adkins’ injures were not caused by her mesh implant, the TVT-S.

She was implanted with the polypropylene small pore, laser cut, mid-urethral sling July 20, 2010 in Portsmouth, Ohio to treat stress urinary incontinence (SUI). Dr. George Pettit was the implanting physician.

At the same time in an apparent contradiction, the jury decided the TVT-S (Secur) was defectively designed and that Ethicon had failed to warn doctors about its potential risks.

Plaintiffs’ counsel, Bryan Aylstock noted Adkins should be awarded damages since her June trial delivered an inconsistent message.

At the trial’s conclusion he told MND, “They found the product defective in design and in warning under OH law. (Adkins is from Ohio).  They found however it wasn’t the cause of her injuries.  We will be moving for new trial as the defense had stipulated to at least it cause some of her injuries.”

This was a first.

In the five previous trials in this Philadelphia court, the juries had found for the mesh-injured plaintiff awarding compensatory and punitive damages to the injured in the amounts of $2.16 million, $12.5 million, $13.5 million and most recently, $20 million.

If she had not been injured by the implantation of the TVT-Secur, which was defectively design, how then did you explain its erosion into her vagina and chronic pain?

 

THE QUESTION OF CAUSATION

One of Ms Adkins’ treating doctors told jurors the mesh erosion caused her pain.

Defense expert, Dr. John Wagner told the jury Adkin’s pain with intercourse was caused by mesh erosion and she would not have the mesh erosion but for the mesh having been implanted in her. Wagner testified it is impossible to “say definitely why anybody get an erosion specifically,” rather he said it is a known complication that happens in about one to two percent of patient who have any type of mesh implant in the vagina.

He did not rule out her smoking history as a contributing factor to her mesh erosion.

An Ethicon expert testified that mesh can cause dyspareunia and erosions into the vagina and these are known complications, not defects. They are risks the implanting surgeon must weigh against the benefit of the device said Dr. Jaime Sepulveda.

There is no “risk-free mesh,” said the doctor.

Dr. Sepulveda said when TVT Secur was marketing in 2006, there was a learning curve for doctors to adopt to implanting this new device, resulting in higher rates of erosions and dyspareunia (painful sex) during this learning curve.  The rate of erosion is reduced nearly to zero after the doctor passed the learning curve, he said.

 

THE ISSUE OF JUROR #1 

In post-trial motions, Adkins’ lawyers argued they should have been allowed to strike juror #1. That juror was a biopharmaceutical engineer with GlaxoSmithKline (GSK) who had worked with polypropylene mesh.  Adkins’ attorneys say the juror made comments suggesting Adkins’ injuries were pre-existing.

The outcome could potentially adversely effect GSK, the juror’s employer, said Adkin’s team.

Judge Erdos denied that motion.

 

Supreme Court Justice Sonia Sotomayor, one dissenting vote

DEFENSE ARGUES PERSONAL JURISDICTION   

Despite its win, J&J filed a Motion for Reconsideration July 26 that asked the court to deny the damages hearing saying it’s improper because the jury decided the defectively designed TVT-Secur was not liable for her injuries.

Then there is the issue of personal jurisdiction.

The U.S. Supreme Court recently ruled ( See MND story here)  that defendants and plaintiffs must stick to courts that are close to their corporate or personal interests, not file in courts that produce more favorable results for either side. Three pelvic mesh cases were recently moved out of the Philadelphia court for that very reason.

See Mesh News Desk story here.

Defense said the issue of personal jurisdiction had been raised earlier in the litigation but Judge New denied a defense motion to dismiss for lack of personal jurisdiction. Mesh makers Boston Scientific and Johnson & Johnson are trying to have nearly 100 pelvic mesh cases dismissed from this court based on a lack of jurisdiction.

See the Legal Intelligencer on challenges to 91 mesh cases in the Philadelphia venue.  August 7 story here. 

See the Mesh News Desk story on the issue here.

The issue of personal jurisdiction does not stand as an impediment to the Court ordering a new trial, Lee Balefsky (Kline Specter) wrote for the plaintiff.

This is the first Ethicon trial where the doctor who implanted the device did not appear. Because of unspecified medical reasons, Dr. Pettit never testified about the impact a more adequate warning would have made on his implanting of the TVT-Secur.

Because of that, defense argued that case law dictates the failure to warn should be dismissed summarily.

It will be up to Judge Erdos to decide just how big a bit of the apple Ms. Adkins wins. ###

9 Comments

  1. Mary P says:

    Has been impossible to obtain any information on the status of my vaginal mesh suit against J &J ethicon for three years. Attorneys i have engaged have never included my claim because of my age. i.e. The awards are are grouped in age brackets up to seventy years of age. I do not qualify because i am over it.

    • Jane Akre says:

      Mary this is outrageous. Become the squeaky wheel.

    • Bejah Blue says:

      This is called discrimination against the elderly and it is also discrimination against women.

      Since when is justice served if a corporation is able to have cases against it dismissed simply based on jurisdiction issues? (JnJ/Ethicon)

      The landscape of travesty of justice is a minefield of staggering proportions just considering this issue alone.

      In my experience with the justice system, looking at my own life…I have never won a case, despite a preponderance of evidence supporting my position. Those who “win” are always either men or organizations or both. I no longer file actions because of this even when I would be completely justified in doing so and have considerable data to support my position. There is no point.

      When I discussed with counsel my interest in filing against United Healthcare, Manor Care and Eisenhower Medical Center in Rancho Mirage, CA for wrongful death (my mom) I was told it would suck the life out of me, take years and be costly and despite the evidence carry a high probability of loss (Because organizations win cases, individual plaintiffs do not).

      We, as citizens of this nation, must still try BUT I grow weary and my hope of winning as an individual seems to not be promising. If we as a people do not continue to pressure the legal system to do the right thing, if we all give up as I have, all hope is lost. My wish has been that because of the magnitude of this issue in all respects, there would be greater hope of justice but clearly that is not the case. It is deeply disturbing. I am no longer strong enough to address it . I hope others of us are. I had hoped our legal representatives would fight for us. That does not seem to be the case generally.
      I would like to know more about this judge…Erdos and how the jury selection was made. How could someone who should have disqualifid himself actually be selected for jury service and remain in good conscience. It almost seems as if he was planted. I would not put anything past these defendants. And how many judges can be bought? Do not think they are highly ethical. My ex-husband had a friend who was a judge in Los Angeles. He told of how he would secure the favors of prostitues by dismissing their cases before him. My guess is that this kind of thing is commonplace.

      I am reading a book at present called Mind on Fire about a young womans descent into madness that turned out to be a biological based illness that could have killed her. I am learning a lot from it, even though it is not directly related to the issues we face and it is hard to put down. I highly recommend it because of the way it illuminates the human condition.

      Bejah

  2. Anon says:

    Encouraging News!

  3. kelli says:

    I have been waiting for over 5 yrs for any word of any kind of movement in my case against Johnson & johnson and ethicon. I have heard nothing, not even the part that the cases are going in waves..or if I’ll be in a wave..nothing but an annual Christmas card preprinted! My case is out of wv…I feel like they should be telling me something! I’m getting unsettled over this as I had first surgery in 2007…a revision 6 months later and another 4 surgeries after that…was told I might need a partial vaginectomy! I am in pain all the time and cannot have any relations at all!

    • Jane Akre says:

      Kelli- that is unacceptable. If you tell them we would like to do a story on you at MND, I bet they would begin to pay attention to you!

      • Charlotte G says:

        Hi Jane:

        I would love for you to do a story on my mom who almost died on the operating table with the mesh insert , and four surgeries later they had to bag all of her insides. Nothing has ever taken her life quicker then this insert.

    • Still Standing says:

      Have you called your law firm and asked for a visit with someone on your case? They do have a responsibility to keep you informed. They would not necessarily tell you about the wave cases. You can get that information on the MDL page of orders. If you were in a wave case, you would know because there will be a flurry of activity on your case. Scheduling depositions, completing your plaintiff fact sheet. Just remember that all of this trial-ready activity adds huge case costs that will be paid from the portion of the settlement that you claim. Depositions cost thousand of dollars for each one. The going rate for each physician that is deposed is $1500/hour. They will be paid for their actual time in the deposition, plus “patient record review that they do prior to the deposition. Add in your attorney travel costs and one deposition can cost around $12,000-$ 15,000. You pay for that before you get your money. That said, you deserve an update. Find a person in the firm ( possible a paralegal) who will honor your need to be kept informed about your case.

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