*UPDATE* Mistrial Called in West Virginia Pelvic Mesh Case as it Gets Started

Jane Akre
September 15, 2020

*UPDATE*  Judge Goodwin has declared a mistrial in this long-awaited pelvic mesh case of Sutphin v. Ethicon.

Last Friday, Judge Goodwin who at one time was overseeing 107,000 defective pelvic mesh cases, declared a mistrial in the case of Annette Sutphin versus Ethicon, a division of Johnson & Johnson.

Plaintiff attorney, Kila Baldwin, received a negative test for COVID though she was sick with pneumonia.  Her IT tech reported sickness, including nausea. The plaintiff has a sinus infection and was coughing.  After jury selection, opening arguments, and the testimony of a medical expert for the plaintiff, urogynecologist Dr. M. Tom Margolis, the proceedings were sent into a brief recess.  Baldwin was tested.

A mistrial means if and when the trial continues, sometime in the future, a new jury will have to be selected.

*UPDATE ON MESH TRIAL* On Recess After a COVID Scare

Update on Sutphin trial, 9-17-2020.  The pelvic mesh trial of Annette Sutphin v. Ethicon (Johnson & Johnson) was recessed on Wednesday because plaintiff attorney Kila Baldwin exhibited respiratory symptoms.

She was tested later in the day for COVID-19. Mesh News Desk will provide an update when it is available but most tests take at least 24 hours
to yield a result.   Also, plaintiff Annette Sutphin has COPD and respiratory infection so she was coughing.

On The Stand

Image: M. Tom Margolis, MD

On the stand on the first day of trial for a direct examination was Dr. M. Tom Margolis, M.D. a San Francisco Bay area urogynecologist and mesh-removal expert.

Dr. Margolis is a frequent expert for plaintiffs in these pelvic mesh trials. In the past, he has testified that polypropylene pelvic mesh is defectively designed. Removing it is like rebar removal from concrete, Margolis is quoted as saying, or gum from hair.

In the Carolyn Lewis trial, Dr. Margolis testified that mesh placement should be the last choice for those who have tried nonsurgical treatments that have failed.

Dr. Margolis encourages women to read extensively especially among those who don’t use mesh. Largely the urogynecologist community
is pro-mesh, he reports, and calls it the gold standard. He does not.

Dr. Margolis does not place synthetic materials transvaginally, calling it a clean/contaminated field that risks infection.

Previous Coverage is below.

Pelvic Mesh Trial Begins Tuesday in Charleston, WV

Mesh Medical Device News Desk, September 14, 2020 ~ After more than one year, a pelvic mesh trial will commence in Charleston, West Virginia, which once consolidated more than 107,000 defective product cases against seven manufacturers of polypropylene (PP) mesh implants.

At one time, women were routinely implanted with PP mesh as a first-line treatment for incontinence and pelvic organ prolapse. Ms. Sutphin was implanted with Johnson & Johnson's TVT-O, which is still on the market.

After a 15-month delay, lawyers representing a mesh-injured woman will be back in court to try her defective product case.  The plaintiff is Annette Sutphin of West Virginia and her case will be heard before Judge Joseph Goodwin in Charleston, West Virginia.

Judge Joseph Goodwin

Because of COVID-19, West Virginia courts were closed in mid-March and began re-opening gradually in June.

The Sutphin case (2:14-cv-01379), was filed in the Southern District of West Virginia in 2014. She is represented by Kila Baldwin of Kline & Specter of Philadelphia.

Sutphin was implanted with an Ethicon TVT-O (obturator) to treat stress urinary incontinence in February 2009.  The implanting surgeon was David Afram, MD, from Logan Regional Hospital in Logan, WV.

TVT-O is part of the Ethicon TVT (tension-free vaginal tape) which remains on the market.

TVT graphic www.kup.at

Ethicon is a medical device division of healthcare giant, Johnson & Johnson (JNJ), based in New Brunswick, New Jersey. The company is represented by Jordan Walker and William Gage of Butler Snow.

Sutphin claims the TVT-O was defective, that Ethicon was negligent in marketing TVT-O, and was deficient in issuing warnings about its potential for danger.

The defendant claims that it followed the guidance of the U.S. Food and Drug Administration (regulation 510k) in bringing TVT-O to market. As a Class II medical device, the FDA does not require any clinical trials to test for safety and efficacy before marketing. Judge Goodwin has excluded discussion of the FDA’s 510(K) approval process in the pelvic mesh trials to streamline the proceedings.

Sutphin had previously been scheduled for trial in December of last year.

TVT-O has been the focus of six previous trials with all won by the plaintiff with the exception of Carolyn Lewis in February 2014.  The Susan McFarland trial in the Philadelphia Court of Common Pleas resulted in a record $120 million jury award.

Kline Specter has represented at least a dozen mesh-injured woman at trial with an average jury award of $35 million.

At one time, the multidistrict pelvic mesh litigation (MDL) filed in Charleston had in excess of 107,000 cases against seven manufacturers. It ended up being the second-largest MDL (multidistrict litigation) in history, just behind asbestos, and has yielded about $7B in settlements and verdicts.

Judge Goodwin closed the MDL to new cases and new injury cases must be filed in the plaintiff’s home state or the state where the manufacturer is based.

TVT-O, Levin Law

Kline Specter is taking the case of Jennifer Gardner (Case No. 2:13-cv-3724) against Ethicon in Florence, South Carolina September 20th.  She was implanted with a Prolift and a TVT-Secur. Lawyers Alia Robertson, Phil Pasquarello, and Eleanor Aldous represent the plaintiff in district court there.


Emmet Trial, December 2018, Mesh News Desk

Mesh Still on the Market, July 2018, Mesh News Desk

McFarland v Ethicon, August 2018, Mesh News Desk

September 2013, Michael Margolis letter to Scottish Parliament

Carolyn Lewis Doc #180-16 Expert report of Tom Margolis, 2013  

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