After two jury verdicts, each exceeding $12 million, in the first pelvic mesh cases to go to trial, legal experts say Johnson & Johnson should seriously consider settling the roughly 150 cases remaining in the mass tort program and focusing on the much larger federal multidistrict litigation.
On February 10, 2016, the jury returned a $13.5 million verdict against J&J’s Ethicon unit, maker of the Prolift pelvic mesh implant. The verdict included $10 million in punitive damages. In December, the company was hit with a $12.5 million jury verdict that included $7 million in punitive damages, Law360 reports. An attorney told Law360 that “[s]eeing two cases in a row producing a verdict in excess of $10 million . . .is a trend that’s worrying for Ethicon.”
J&J and Ethicon are defendants in most of the 177 cases currently listed in the Philadelphia County Court of Common Pleas pelvic mesh mass tort, and these cases are part of approximately 44,400 pelvic mesh suits the company faces nationwide. The figures come from the company’s most recent U.S. Securities and Exchange Commission filing.
Pelvic mesh implants (also called transvaginal mesh) are widely used to treat stress urinary incontinence (SUI) and pelvic organ prolapse (POP). But plaintiffs have alleged that the devices are defective: the mesh pores are too small, leading to excessive scar tissue growth. The mesh is difficult to remove if it does not work properly, Law360 reports.
The Food and Drug Administration (FDA) says that the most common side effects associated with transvaginal mesh devices include:
- mesh erosion through the vagina (also called exposure, extrusion, or protrusion)
- pain during sexual intercourse
- organ perforation
- urinary problems
The woman who received the $13.5 million award said the Prolift implant left her in near constant pain and discomfort and unable to have sex. The problems continued even after surgery to remove the protruding part of the implant.
Legal experts say these verdicts suggest that J&J would be well-served by settling the remaining Philadelphia suits and turning its attention to the MDL. The company resolved a Philadelphia case that had been scheduled for trial February 22. But Law360 says J&J may not be ready to end the Philadelphia litigation. An attorney representing Johnson & Johnson commented “Two cases is not enough to throw up a white flag.” The next case on the schedule in Philadelphia is for November. But the company’s settlement decisions will also depend on its internal assessment of the two cases already tried. Did J&J expect these losses or does it think it could win subsequent cases?