Johnson & Johnson suffered yet another loss in the pelvic mesh mass tort program in Philadelphia after a jury awarded $2.16 million to a woman who claims that its mesh product led to ongoing pain.
In the May 26 verdict, the 12-member jury ruled that the risks of Prolift mesh device, which was made by Johnson & Johnson subsidiary Ethicon, outweighed its benefits.
Despite the victory for plaintiff Sharon Beltz, the award was the lowest figure in all the cases related to the mesh device.
While the victory could mean a settlement of the 180 pending lawsuits in Philadelphia and the hundreds of others around the world, attorney Tom Kline of Kline & Specter LLP said he doesn’t see it happening just yet.
“The longer this goes on, the more it drives the price up, because juries consistently have proven these cases are not only seven-figure cases but multimillion dollar cases,” he said to Law360.
Kline, who represented Beltz in the trial, also told The Legal Intelligencer that he expects additional jury verdicts to follow.
“This is now our fourth consecutive Philadelphia jury verdict award [of] multimillion dollars against Johnson and Johnson for their dangerously defective transvaginal mesh products which injured tens of thousands of women, this being the second straight jury verdict relating to its dangerous Prolift product, which was withdrawn from the market in 2012,” Kline said. “We are pleased that Sharon Beltz, a woman from Pen Argyl, Pennsylvania, will be compensated, and expect many additional jury verdicts to follow.”
Kristen Wallace, a spokeswoman for Ethicon, pointed to the fact that unlike the other cases, the jury did not award punitive damages.
“We empathize with women suffering from pelvic organ prolapse, which can be a serious and debilitating condition,” Wallace said to Law360. “There are various treatment choices for this condition, including surgical treatment with implantable mesh, which is backed by years of clinical research and can be the preferred option for some women seeking to improve their quality of life.”
Jury Found Mesh Worked as Expected but Too Risky
The jury found that the risks outweighed the benefits but also found that the mesh performed as expected and was not defective. The plaintiff also claimed that the implanting surgeon was not warned about the potential risks, but the jury found the surgeon had been adequately warned.
The decision was made using questions that came out the Tincher risk-utility theory announced in Tincher v. Omega Flex. That case established two ways to assess product liability under state law.
“This case was a good test of the Tincher alternative standard,” Kline said about the verdict. “It showed the plaintiff could win on one or another.”
Beltz was first implanted with the Prolift product in 2006 to treat pelvic organ prolapse, which occurs when organs in the pelvic area push against the walls of the vagina, and stress urinary incontinence from four pregnancies.
She later began experiencing complications, such as pain that is amplified when having sex with her husband. However, doctors were unable to remove the mesh.
“Mrs. Beltz’s problems are thus permanent,” according to court papers obtained by The Legal Intelligencer. “She may elect to undergo further pain injections, resection of the mesh, or start taking pain medications regularly, but these options at best will only mitigate her symptoms. She has to live the remainder of her life with constant pelvic pain, a sensation her bladder is pulling, urinary incontinence and retention, lower flank pain, urinary tract infections, and severe pain with sex that lingers days after she has intercourse.”
The Prolift product was removed from the market in 2012, but Beltz said she might face the risk of mesh erosion for the rest of her life.
Ethicon attorney Kat Gallagher of Beck Redden LLP disagreed with what happened. She pointed out that Beltz had received relief from the product and was adequately warned of the risks.
“This was not a minor quality-of-life issue. This was a big problem for her and she wanted to have something done,” Gallagher said. “She decides after weighing her risks and benefits that she wants to go forward.”
Kline said some of the losses in the verdict were likely caused by the jury’s conclusion that Beltz’s implanting surgeon was being trained by an advocate for Johnson & Johnson and even received $100,000 from the company, so she was aware of the risks.
Verdict Marks Fourth Loss in Mesh Trials
The verdict came nearly a month after a separate jury in Philadelphia awarded $20 million to a New Jersey woman who claimed she suffered injuries after being implanted with vaginal mesh. In that case, plaintiff Peggy Engleman was awarded $2.5 million in compensatory damages and $17.5 million in punitive damages.
“I am happy I could be a voice for other women,” Engleman said after the April decision. “It’s been a nightmare, and I feel justice was truly served today.”
In that case, the jury found that the mesh was defective and that Johnson & Johnson and Ethicon hid the risks associated with the product.
The first verdict came in 2015 for $12.5 million and the second in 2016 for $13.5 million. A fifth trial is currently taking place.