**Update* At this writing, the Perry case has gone to the jury** MND will bring you the verdict when it becomes available.**
Medical doctors who treated or examined Ms. Coleen Perry, the plaintiff in Perry v. Ethicon, (1:13-cv-00729-AWI-JLT), took the stand to testify in the fifth week of her trial against Ethicon, a Johnson & Johnson (J&J) subsidiary, in a Bakersfield, California courtroom.
Thanks to Courtroom View Network for access to live streaming video of the Perry v. Ethicon trial. Mesh News Desk is prevented from showing any plaintiffs or evidence or from quoting directly from the case.
Monday afternoon, Feb. 23, Ethicon attorney Burt Snell questioned Dr. Edward Charles Allen, an obstetrician/gynecologist from Bakersfield, California who continues to be Ms. Perry’s treating doctor. While Dr. Allen made it clear he is not an expert for either side, his story favored the defense (Ethicon, Johnson & Johnson), for whom he is still a consultant and preceptor (teacher). On more than one occasion, Dr. Allen said he is very good at his profession. He has implanted about 250-350 mesh slings to treat either incontinence or prolapse.
In March 2011, Ms. Perry, 50, received a TVT-Abbrevo (Ethicon/J&J) 12 cm polypropylene mesh sling, implanted by Bakersfield surgeon Dr. Luu. After a couple of years, Ms. Perry said she finally wanted to treat the incontinence which was disruptive to her active lifestyle. She claims since then, the implant has caused her pelvic pain and dyspareunia (painful sex), which has not subsided, despite the attempt by Dr. Allen to excise a portion of the Abbrevo sling in January 2012.
Under questioning by attorney Snell, Dr. Allen said Ms. Perry did not complain of pain with sex in her follow-up well woman exam in October 2012. She did not discuss any problems with incontinence in 2012. On cross exam, the jury was reminded Ms. Perry was being treated by another doctor for hormonal issues with a non-drug natural approach and her husband previously testified that his wife is not a complainer.
Dr. Allen next saw her November 7, 2013 for another well woman exam. She had a slightly enlarged uterus then and did not tell her physician about ongoing pelvic pain, pain with sex, a burning feeling in her vagina or feelings like glass is inside, or any problems with incontinence. There was no evidence of a mesh exposure in 2013, said Dr. Allen. The next visit was Nov 10, 2014 and again there were no reports of pain or urinary incontinence. Dr. Allen said he believes his 2012 excision surgery was a success and he has felt no palpable mesh since that January 2012 revision surgery.
What then causes her dyspareunia? Dr. Allen opined it was vaginal shortness linked to her dyspareunia.
On cross-examination, Perry attorney Richard Freese was pleasant but had no time for a conversational back and forth as had occurred with Mr. Snell.
He noted Dr. Allen did not tell the jury about his long relationship with Ethicon. Dr. Allen denied one of his roles for the company was to say good things about Ethicon (J&J) or to even use their products. He insisted he would use whatever medical device he thought worked best, not one that he was paid to promote.
Producing a May 6, 2011 signed a contract between Dr. Allen and Ethicon that would pay him $16,000 a year to be involved in educational summits and forums teaching other doctors about their products, Mr. Freese showed the jury an email about the contract specifics. In it, Dr. Allen insisted he own anything he discovered while working for Ethicon, not the other way around. Dr. Allen had an advantage at the time of this discussion. He was talking to Boston Scientific about being a preceptor or proctor for that mesh manufacturer. Under questioning by Mr. Freese, Dr. Allen didn’t remember having conversation with the two competitors at the same time.
Later, Dr. Allen said it is not unusual to have contracts with companies. It allows a doctor to monitor local doctors and to consult with other experts around the country. He didn’t make any money from the agreements, he said.
Ms. Perry’s Revision Surgery
Earlier that day during morning testimony, Dr. Allen said he removed part of the Abbrevo from Ms. Perry in a January 17, 2012 surgery. He noted a tight vaginal band and excised a mesh-like material with fine blue plastic sutures that measured 1.3 by .09 by .3 cm. He cut wider than the mesh, dissecting 2 to 3 cm on either side of the Abbrevo to cut past an infection to healthy tissue he felt was more likely to heal. The rest of the Abbrevo, which measure 12 cm in length, remains in her body today.
In a follow-up visit, Dr. Allen said he felt the patient was healing normally. Since then, he’s seen no palpable mesh or mesh erosion, laying a foundation of doubt as to whether her complaints of pain could be real.
Medical Expert for Ethicon
A trial that was supposed to take three weeks after its January 26 start is now in its fifth week to accommodate the court schedule of Superior Court of California, Kern County Judge Lorna Brumfield.
Friday, February 20, court was not in session but on Thursday, the 19th Dr. Brian Flynn took the stand. The medical doctor was retained as an expert for Ethicon and had examined Ms. Perry in preparation for trial.
Under questioning by Ethicon attorney Snell, Dr. Flynn opined Ms. Perry had not only urge incontinence before her Abbrevo surgery but also pelvic pain. Painful menses had necessitated an endometrial ablation surgery by a local Bakersfield doctor years earlier.
Dr. Flynn looked rather nonchalant and noncommittal giving his answers.
The University of Colorado urologist, hired as a medical expert in this case, specializes in reconstructive urology at the school of medicine. See the link here.
Dr. Flynn told jurors he was not there to state that Dr. Luu, the implanting physician, breached any standard of care or practiced malpractice. He was asked which surgical practices played a role that led to her complications. He answered her posterior colporrhaphy and perineoplasty surgery.
There was no evidence of mesh degradation. Based on his exam, Dr. Flynn said Ms. Perry’s prognosis is good.
On cross examination, Richard Freese questioned the credibility of Dr. Flynn. In preparing to testify at trial had he, Dr. Flynn, committed 70 hours of deposition preparation? Yes. Had he seen any Ethicon documents or talked to any Ethicon employees? No.
Freese established Dr. Flynn’s had a consulting relationship with Ethicon from 2004 to 2011. He pulled out the 2005 contract. While Dr. Flynn denied he had any role in the marketing of Ethicon’s mesh medical devices, he did admit under further questioning he helped launch the TVT Exact. The rest of the time he was involved in professional education and “dinner programs,” another form of education.
The back and forth continued between Dr. Flynn and Mr. Freese with the attorney eliciting information about cadaver labs in which Dr. Flynn was a preceptor. You were telling doctors the Abbrevo and the TVT Secur were good and safe products weren’t you? Dr. Flynn said he did 200 procedures and did feel Abbrevo was a safe product. The two go back and forth over whether or not he has used Abbrevo in the last two or three years. (His deposition said he used it in 2013). Additionally, Dr. Flynn said he’s done about 50 mesh revision surgeries each year over the last three years, removing, or partially removing mesh used to treat both incontinence and prolapse.
Today Dr. Flynn still implants polypropylene mesh slings, but Mr. Freese elicited that he is taking one out for every one he puts in. Dr. Flynn is presently converting to the use of biologic meshes and returning to treat prolapse with burch procedures. #