A northern Indiana jury returned a $35 million verdict March 8 for a woman injured by a transvaginal mesh implant in a trial that is believed to the seventh mesh lawsuit against Johnson & Johnson and its subsidiary Ethicon, Inc.
The jury found the plaintiff established both her claims of negligent design defect and negligent failure to warn. It awarded the woman $10 million in compensatory damages and $25 million in punitive damages.
New Jersey law applied in the case since Johnson & Johnson is headquartered in the Garden State. Consequently, the punitive damages could have been as much as five times the compensatory award.
Ethicon said it intends to appeal the verdict in Barbara Kaiser and Anton Kaiser v. Johnson & Johnson and Ethicon, Inc., 2:17-cv-114. Ethicon said the verdict “contradicts the evidence that the product was properly designed and that the company appropriately informed surgeons of pertinent complications.”
This case is part of the multi-district litigation against transvaginal mesh manufacturers. After surviving summary judgment in the U.S. District Court for the Southern District of West Virginia at Charleston, the lawsuit was transferred to northern Indiana where Kaiser lives and where she had the device implanted.
The plaintiff’s lead trial attorneys were Thomas Plouff of Costello McMahon Burke & Murphy Ltd. in Chicago; Jeffrey Kuntz at Wagstaff & Cartmell LLP in Kansas City, Missouri; and Ed Wallace of Wexler Wallace LLP also in Chicago.
“I’m satisfied with the verdict,” Plouff said, asserting that high dollar awards deter future wrongdoing.
He said there have been seven trials against Johnson & Johnson involving the mesh implants. Two settled and five ended with verdicts for the plaintiffs.
Before the jury, he did not argue for a specific amount of punitive damages. Instead, he explained that the final amount had to be reasonably related to the compensatory damages. To give jurors an idea of reasonableness, he pointed out 2 percent of Ethicon’s net worth was $40 million.
Although his law practice is based in Chicago, Plouff has deep roots in Indiana. He grew up in the Hoosier state and earned his undergraduate and law degrees from the University of Notre Dame. Also, after working for six years in Washington, D.C., he returned to serve as an assistant U.S. Attorney for the Northern District of Indiana. He went into private practice as a personal injury lawyer in 1993.
Kaiser sued in March 2012. She claimed the defendants offered exaggerated and misleading information about the safety of their product, Prolift. The device was marketed for the treatment of pelvic organ prolapse.
She had had the mesh implanted in January 2009 at Community Hospital in Munster so to proceed with her case, she had to overcome the timeliness hurdle.
Johnson & Johnson and Ethicon argued in their motion for summary judgment that Kaiser was time-barred from bringing a complaint under the Indiana Product Liability Act, which imposes a two-year limit on personal injuries allegedly caused by a product. The defendants contended Kaiser’s surgeon informed her of the risks including long-term pelvic pain, which was among the complications she complained of immediately after her surgery.
Kaiser successfully countered she did not report any pelvic pain or pain with intercourse to her physician for two years from the time of the procedure. However, in September 2011, she complained of low pelvic pain and only after another doctor determined the mesh had shrunk did she link her problems to the implant.
At trial, Plouff and his team worked to overcome any bias the jurors might have had about Kaiser’s choice to have the mesh implanted. Juries, he said, will try to distance themselves from a plaintiff by maintaining the injury could not happen to them personally because they would have been more proactive in prevention.
Plouff emphasized the prolapse of Kaiser’s bladder was impacting the quality of her life. She sought treatment from four different physicians before deciding to have the implant.
Ethicon said it will continue to defend the safety and efficacy of its pelvic mesh products in litigation. In a statement, the company said scientists around the world agree that the mesh implant is an important treatment option for some women.
“All surgeries to treat pelvic organ prolapse have risks,” said Ethicon. “While we empathize with those who have experienced complications, many women with pelvic mesh see an improvement in their day-to-day lives.”
However, Ethicon did note that in June 2012, it made a business decision to discontinue the global marketing of all transvaginal mesh devices used to treat pelvic organ prolapse.
Plouff said Kaiser did have a second surgery to remove some of the mesh. These surgeries can be extremely risky, and she still suffers from chronic pain.
After the verdict, Wexler Wallace issued a press release with the three plaintiff’s attorneys applauding the jury’s work.
“We had a very attentive jury that carefully considered all the evidence and did the right thing,” Edward Wallace said. “Their names may never be known, but we hope Johnson & Johnson and other medical manufacturers will start to listen to these juries before they put a medical device on the market that lacks clinic data and adequate warnings.”•