During its fourth day of deliberations, the jury in the product liability trial of Perry v. Ethicon finally decided for the plaintiff, Coleen Perry and awarded her $5.7 million.
This morning the jury in the Bakersfield, California court was reportedly quiet and did not seek any additional testimony as they had during the three previous days.
Ms. Perry was implanted with an Abbrevo mini-sling in 2011, as a treatment for incontinence. She has since suffered chronic pelvic pain, dyspareunia, mesh erosion, shrinkage of the mesh and scar tissue formation, among other complications.
The verdict break down includes:
The Abbrevo mini-sling, made of polypropylene, was found defective in its design and in its instructions to doctors, the end users.
This is the first punitive damages award against Ethicon/J&J for a case involving a mesh sling (as opposed to mesh for pelvic organ prolapse).
Attorney Peter de la Cerda tells Mesh News Desk, “We couldn’t be happier for Mrs. Perry. The jury’s verdict shows thoughtfulness for the serious and life-altering injuries she sustained from the TVT Abbrevo. The jury’s verdict also sends a clear message to Ethicon, Inc. and Johnson & Johnson – the concerned citizens of California will not stand for these manufacturers’ improper conduct in designing and marketing the TVT Abbrevo.”
Plaintiffs’ attorneys had asked for a minimum of $17.2 million for pain and suffering, future medical expenses and punitive damages.
The Abbrevo mini-sling, made from Ethicon’s Prolene mesh, remains on the market unlike its prolapse mesh, Prolift and the TVT Secur which were quietly removed almost three years ago.
During the trial, Ms. Perry’s attorneys showed jurors how polypropylene mesh degrades over time and erodes into vaginal tissue. Scar tissue shrinks and forms painful bands that lead to chronic pelvic pain and dyspareunia (painful sex). The defense, representing Ethicon, a division of Johnson & Johnson, tried to show how Ms. Perry had an active life with her husband and even went zip-lining with him in Hawaii.
The jury was shown the Material Safety Data Sheet – a label that accompanies raw polypropylene resin, that warns the resin material is not intended to be used in making implantable medical devices. Despite that warning from Sunoco, a petroleum company, the resin was used to make the Abbrevo and other pelvic meshes.
Ethicon’s TVT-O, a transobturator sling, has twice been found defective in jury trials (Huskey, Batiste). The Prolift trial of Linda Gross, conducted in a New Jersey courtroom in February 2013, yielded the highest jury award against J&J to date, $11.1 million, which includes $7.76 in punitive damages. That case is on appeal.