The Court of Appeals for the Fourth Circuit has upheld a $3.27 million jury verdict handed down two years ago in a bellwether trial over Johnson & Johnson subsidiary Ethicon Inc.’s defective transvaginal pelvic mesh implants. The court found that the woman who brought the suit showed sufficient evidence that the mesh caused her injuries. In a published opinion, the Fourth Circuit rejected Ethicon’s argument that Jo Huskey had failed to prove there was a specific flaw in the design of her TVT-O sling, finding that the record belied that assertion as she offered sufficient evidence for a reasonable jury to find that the company’s use of heavyweight polypropylene mesh in the sling caused her severe scarring and pelvic pain.
Ms. Huskey’s expert witnesses had testified about the body’s reaction to heavyweight polypropylene. One witness was also a former Ethicon employee, Dr. Brigitte Hellhammer, who testified that she had no reason to believe that lightweight mesh couldn’t effectively treat stress urinary incontinence. The court said in its opinion:
Drawing all inferences in the Huskeys’ favor, a reasonable jury could conclude from this expert testimony that Ethicon’s use of a heavyweight quantity of polypropylene mesh in the TVT-O constituted a design defect that caused Mrs. Huskey’s inflammation and pelvic pain.
Huskey sued Ethicon in 2012, claiming the polypropylene mesh in her TVT-O sling eroded, causing her severe, ongoing pain as the mesh could not be entirely removed through surgery. Her husband, Allen, also sued for loss of consortium. The suit was the first bellwether case to go to trial in the massive multidistrict litigation (MDL) against Ethicon over its mesh implants. The trial concluded on Sept. 5, 2014, with the jury returning its compensatory damages verdict.
U.S. Judge Joseph Goodwin solidified the jury’s verdict in August 2015, refusing to throw out the verdict as a matter of law, or alternatively to allow a new trial, finding that the Plaintiffs had brought sufficient evidence that Ethicon failed to warn Huskey’s doctor of certain risks in implanting the company’s TVT-O polypropylene mesh product, and even stronger evidence that there were defects in the product’s design.
The appeals court also rejected Ethicon’s argument that a product liability doctrine known as “comment k” – which holds some products, such as vaccines, are unavoidably unsafe though not unreasonably dangerous – provided a shield from Huskey’s claims. Huskey is an Illinois resident and courts in that state determine on a case-by-case basis if a specific product is covered by that doctrine, the panel noted.
Much of the same trial evidence that indicated the use of heavyweight polypropylene mesh constituted a design defect also suggested that “comment k” doesn’t shield Ethicon, the panel said. For one, a jury could reasonably infer from Hellhammer’s testimony that if Ethicon had used a lightweight mesh, the TVT-O would have stayed effective and patients would have a lower risk of reacting to the mesh, the panel said. “Taken together, the expert testimony allowed the jury to infer that Ethicon could have designed the TVT-O with lightweight mesh without sacrificing any performance,” the panel said.
Huskey is represented by Edward A. Wallace and Mark R. Miller of Wexler Wallace LLP, Fidelma L. Fitzpatrick of Motley Rice LLC, and Jeffrey Kuntz and Adam Davis of Wagstaff & Cartmell LLP. The case is Huskey et al. v. Ethicon Inc. et al., (case number 15-2118) in the U.S. Court of Appeals for the Fourth Circuit.
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