Is Huskey Pelvic Mesh Case Going to the Supremes?

//Is Huskey Pelvic Mesh Case Going to the Supremes?

Is Huskey Pelvic Mesh Case Going to the Supremes?

SCOTUS, Wikipedia

Mesh Medical Device News Desk, June 7, 2017 ~ The  pelvic mesh case of Huskey v. Ethicon has been in the courts since 2012.

After she won a defective product case before a jury in 2014 and was awarded $3.27 million, J&J appealed and lost.

Now Ethicon/ J&J wants the U.S. Supreme Court to hear the Huskey pelvic mesh case! 

Is Huskey going to the Supremes?

The case of Jo Huskey v. Ethicon was the first bellwether pelvic mesh case naming Ethicon (Johnson & Johnson) to go to trial in multidistrict litigation in Charleston, WV., (Case no. 2:12-cv-05201).

Huskey on the stand with Christy Jones, August 28, 2014

It concluded September 5, 2014 with a $3.27 million jury verdict in compensatory damages and a decision the pelvic mesh was defective.

Ethicon then appealed the verdict, first to Judge Joseph Goodwin, who refused to throw out the verdict or allow for a new trial.

Then Ethicon took the case to the Fourth Circuit Court of Appeals which also handed Ethicon a defeat, rejecting Ethicon’s argument that Huskey failed to prove the TVT-Obturator sling was defective. Huskey et al. v. Ethicon Inc. et al., (Case number 15-2118).

Ed Wallace, attorney for Jo Huskey

The appeals court also affirmed a defective design because Huskey lawyers provided evidence that the heavyweight polypropylene (PP) mesh could have been made safer with a lighter weight mesh, less likely to cause scar plate formation, inflammation or incite a foreign body response.

TVT-O was cleared for marketing by the FDA in 2003 under the 510(k) clearance process and Tension-Free Vaginal Tape-Obturator uses a heavyweight polypropylene laser cut mesh to treat stress urinary incontinence. It remains on the market.

The appeals court also rejected the Ethicon argument about “comment k.”  Comment K is a product liability doctrine that states some products are unavoidably unsafe such as vaccines, though not unreasonably dangerous, therefore manufacturers are shielded from liability.  As an Illinois resident, a case by case determination is made as to the weight of that doctrine.  The panel said Ethicon is not shielded by “comment k.”

Not to be deterred, Ethicon now wants to take it one step higher and has appealed to the U.S. Supreme Court.

In filing a writ of certiorari on May 23, Ethicon challenges the 4th Circuit U.S. Court of  Appeals decision that the trial court rightly excluded testimony about Ethicon’s compliance with the FDA’s 510(k) clearance as a way of entering the market.

Ethicon said the trial court excluded all FDA-related evidence from trial.

TVT-O from

If they had been allowed, Ethicon said it would have presented evidence that the TVT-O was cleared through the 5 10(k) process, and that the FDA concluded that SUI slings were safe and effective and clinical trials were not needed.

Ethicon also argued that Prolene suture makes up TVT-O and it has FDA approval/ clearance and a history of use.

Ethicon wants the Supreme Court to address the view that the 510(k) clearance is not a safety and effectiveness determination, “an error of law that only it can straighten out.”

The request is signed by Charles C. Lifland of O”Melveny & Myers LLP.

In the Linda Gross case, Ethicon also attempted to have the Supreme Court address what it thought were outstanding issued. The High Court denied the Ethicon plea.


Check out comment k doctrine. Huskey is from Illinois and state law determines if a specific product is covered by comment k doctrine.

MND, Huskey Case Affirmed by Appeals Court, February 2017

MND, Closing Arguments in Huskey case

MND, Day 8 Wrapup Huskey v. Ethicon

MND, Day 4 Huskey takes the Stand

(Use Search Bar on Page One to read all Huskey coverage)



By | 2017-06-08T21:48:22+00:00 June 7th, 2017|News|8 Comments

About the Author:

I’m National News Editor, Jane Akre and I began Mesh Medical Device News Desk aka Mesh News Desk (MND) in the summer of 2011 just after the Food and Drug Administration issued an explicit warning to the public that complications associated with surgical mesh used for prolapse repair (POP) and incontinence (SUI) are NOT rare! That was the starting point for the litigation you see today and thousands of lawsuits have been filed by women whose lives have been altered, some permanently, by the use of this petroleum-based product.


  1. Kitty June 7, 2017 at 2:07 pm - Reply

    This COULD all be because of Belz. It is so disgusting that women who have suffered injuries will be thrown under the bus because of a greedy selfish action.

  2. Still Standing June 8, 2017 at 7:36 am - Reply

    Except this was filed three days prior to the Belz verdict.

  3. Kitty June 8, 2017 at 4:20 pm - Reply

    True…..but the Belz denial of injury could affect the appeal..u think??

  4. Sue Lee June 25, 2017 at 11:13 pm - Reply

    Please advise, 2 surgery 2 brands of mesh, 2 removals, 1 stem surgery, then removed pain, daily antibiotics due to constant severe infections. Have attorney who said no pay because my brands are still on market. I’m damaged and furious.

    • Jane Akre June 26, 2017 at 9:18 am - Reply

      Hi Sue Lee- most of the meshes remain on the market, even the ones found to be defective in a court of law. What kind of law firm is that to give you such information? Were your surgeries removal surgeries? Which manufacturer? You can write me privately if you want……but that answer sounds like there is something else going on. thank you.

  5. Fiona Dale July 5, 2017 at 4:19 am - Reply

    Is there an English group at all? I need advice before surgery on Aug 1st. Thank you

  6. Sandy July 21, 2017 at 2:57 pm - Reply

    When Johnson and Johnson settled with these 2 to 3 thousand women, made them look good,but no money is forth coming, with no date to receive,and a date already missed for our money!

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