Barbara Kaiser is one step closer to seeing an end to her civil action against Ethicon, a division of Johnson & Johnson, after a federal appeals court upheld her $20 million judgment against the healthcare giant.
Kaiser sued Ethicon after being implanted with a Prolift pelvic mesh used to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI). After suffering chronic pain, levator myalgia, bladder spasms, and dyspareunia, she underwent one explant surgery.
Her trial began in Hammond, the Northern District of Indiana after being remanded from West Virginia and the MDL. On March 8, 2018, the six woman, three man jury delivered its verdict in Kaiser’s favor, $35 million, which included $25 million in punitive damages.
In doing so they determined that Johnson & Johnson and its Ethicon medical device division, marketed, sold, and recruited physicians worldwide to implant the Prolift pelvic mesh, an “unreasonably dangerous” pelvic mesh, defective in its design and in its warnings to end user physicians.
As it always does, Ethicon filed an appeal. The punitive award was reduced by the district court on a post-trial motion $25 million to $10 million, reducing the overall compensation from $35 to $20 million, which the plaintiff accepted.
Thomas O. Plouff, a Chicago personal injury attorney who represented Ms. Kaiser along with Ed Wallace (Wexler Wallace) and Jeff Kuntz of Wagstaff Cartmell explains to Mesh News Desk why verdicts are reduced.
“Punitive damages can be tough to hold onto.
"When a court reviews a punitive damages award, it will compare the amount of compensatory damages to the amount of punitive damages. As compensatory gets high it’s harder to justify a higher multiple of punitive damages.
“The district judge decided it wouldn’t pass constitutional muster unless he knocked it down to a 1 to one ratio. The theory is you can’t have excessive taking. We accepted the remitter otherwise we would have had to retry the case.”
Ethicon has three options. It could pay the judgment, ask the appellate court for a rehearing, or petition asking for the U.S. Supreme Court to hear the case. The Supreme Court limits cases to where there is conflict that needs to be resolved among the lower courts.
Plouff says he has three other cases he is readying for trial. All were filed in state court and not the MDL in West Virginia.
At trial, Kaiser had Canadian pathologist Vladimir Iakovlev among the experts who appeared. He studies explanted mesh to understand its effect on the body.
Her implanting physician, Dr. Gregory Bales, was instructed on how to implant a Prolift under Dr. Vincent Lucente MD, a urogynecologist/ consultant who has been compensated millions by Ethicon. Bales chose an extra large Prolift, with six polypropylene arms should be implanted in Ms. Kaiser.
Dr. Bales said in his deposition if he had known about the complications associated with the use of Prolift he “may not have started using the Prolift.”