In what thousands of women hope is a sign of a change in philosophy, on the fourth day of trial in a bellwether case before the Hon Joseph R. Goodwin, Ethicon and J&J entered into a settlement of the case brought by Diane M. Bellew, who had a Ethicon Prolift Anterior Floor Repair System implant for pelvic organ prolapse. (Case no. 2:13-cv-22473). After the surgery, which occurred in Arizona, Ms. Bellew alleged she had multiple complications, including mesh erosion, mesh contraction, inflammation, dyspareunia (pain during sexual intercourse), urinary incontinence, chronic pain, and recurring prolapse of organs. (Master Compl. ¶ 49). In addition, she had four subsequent operations to remove and revise the implanted mesh. (Pl. Fact Sheet [Docket 206-1], at 7).
Previously J&J sought a Summary Judgment on the grounds that the Statute of Limitation had passed. On November 24, 2014, Judge Goodwin allowed the case to go forward; denying the Statute of Limitations motion, stating:
However, under Arizona’s discovery rule, “a cause of action accrues once the plaintiff knows of the injury and the causal connection between the defendant’s product and that injury.” Mack v. A.H. Robins Co., 573 F. Supp. 149, 154 (D. Ariz. 1983). In other words, the cause of action accrues when the plaintiff discovers or should have discovered the injury and its cause. See id. at 153–54. Although “plaintiffs are charged with due diligence in pursuing their claims,” a plaintiff is not required to have knowledge of the defendant’s improper conduct or defect in the product in order to trigger accrual. Id. at 154 (citing Rodriquez v. Manoil, 450 P.2d 737 (Ariz. Ct. App. 1969)). (http://www.aboutlawsuits.com/wp-content/uploads/2014-11-24-SJ-Order.pdf )
Of the 67,000 pending cases before Judge Goodwin, approximately 22,000 are Ethicon (J&J).
This settlement comes on the heels of a Plaintiff’s verdict on March 5, 2015 for Coleen Perry for damages from the Abbrevo sling device of $5.7 million, which was $700,000 compensatory and $5 million in punitive damages.
Vaginal Mesh Trial History
Bard has lost two jury trials, settled a third case after a jury selected, and settled a fourth before trial commenced. In July 2012, a California jury awarded Christine Scott and her husband $5.5 million after she underwent nine revision surgeries. Scott sued C.R. Bard in 2009 over its Avaulta Plus mesh product.
In February 2013, Linda Gross won $11.11 million in her lawsuit against Johnson & Johnson’s Ethicon brand over its Prolift vaginal mesh product. Gross had 18 surgeries. The New Jersey jury found that J&J failed to warn patients and doctors about the risks of its mesh products and made fraudulent misrepresentations.
On August 15, 2013, after about 12 hours of deliberation, the jury found for Donna Cisson in her vaginal mesh trial against manufacturer C.R. Bard Inc, and found damages in the amount of $250,000 and $1.75 million in punitive damages. The jury found that Bard failed to provide adequate warnings as to the defects in its vaginal mesh product and that the device was defective. Judge Joseph Goodwin upheld the 2 million verdict in October 2013 as appropriate and that Cisson’s attorneys proved the company’s vaginal mesh was the cause of her injuries. In Queen vs. Bard, starting trial immediately after Cisson, a settlement was reached after the jury was selected. Finally, Bard settled Melanie Virgil’s claims that Bard’s Avaulta Plus insert caused urinary problems before trial commenced in New Jersey.
On February 18, 2014, Judge Joseph Goodwin granted Ethicon’s Motion for Directed Verdict at the close of Plaintiff’s case in Lewis vs. Ethicon, Inc. (In Re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation, MDL Docket No. 2327, Carolyn Lewis, et al. v. Johnson & Johnson, et al., No. 2:12-4301, S.D. W.Va.).
On April 4, 2014, a Dallas jury found for the plaintiff Linda Batiste and ordered Johnson & Johnson to pay $1.2 million for its defective design of the Ethicon TVT-O pelvic mesh.
Two Massachusetts juries recently rejected women’s claims that Boston Scientific’s incontinence sling was defective designed and injured women.
On September 5, 2014, a federal jury in West Virginia found for the plaintiff Jo Huskey and ordered Johnson & Johnson’s Ethicon to pay $3.27 million.
On September 9, 2014, a Dallas federal jury found for the plaintiff Martha Salazar and awarded a verdict against Boston Scientific of $73 million, including $50 million in punitive damages, which was later reduced to$34 million.
On November 18, 2014, 4 Florida women were awarded $27 million against Boston Scientific.
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