(Photo: scyther5/iStockphoto.com)

A Philadelphia judge presiding over a transvaginal mesh case that resulted in a $13.7 million judgment said the award should not be disturbed on appeal.

In an opinion issued this week in response to Johnson & Johnson subsidiary Ethicon’s appeal of the judgment, Philadelphia Court of Common Pleas Judge Kenneth J. Powell Jr. wrote that the state Superior Court should allow the award to stand.

The judgment stems from the case of Sharon Carlino, who claimed Ethicon’s mid-urethral sling device failed because it was negligently designed, and that its failure caused her to suffer permanent pain during sex. The device was implanted in her in 2005 to combat urinary incontinence; however, she claimed the mesh was defective because its pores were too small, it had a tendency to degrade, it was overly friable because it was cut by a machine and not a laser, and the mesh can erode through the patient’s tissue.

After a 14-day trial last February, a jury awarded Carlino $3.25 million in compensatory damages, $250,000 to her husband for loss of consortium, and $10 million in punitive damages. Delay damages in the amount of roughly $240,000 were later awarded.

Ethicon had asked the court to either enter judgment notwithstanding the verdict, grant a new trial, or reduce the verdict award. In doing so, Ethicon raised several arguments for why the jury’s verdict should be reversed, including statute of limitations, inadequate jury instructions, and evidentiary disputes.

Powell disagreed with Ethicon’s argument that the punitive damages should be remitted because there was no evidence Carlino’s injuries were caused by “actual malice” or “wanton and willful disregard” for the potential harm to a patient.

“The evidence of defendant-appellant’s wanton and willful disregard for plaintiff adequately supported the jury’s award of punitive damages,” Powell said.

He added that the jury was entitled to find from the evidence that Ethicon deceptively withheld informations about the risks of having a transvaginal implant.

“The jury was free to determine that Ethicon provided warnings so deliberately misleading as to warrant the imposition of punitive damages,” the judge said.

Powell also held firm on the issue of compensatory damages in response to Ethicon’s argument that they be remitted as well. Ethicon argued that there was no testimony as to past or future medical expenses, and characterized her pelvic pain as intermittent.

“To characterize her pain this way is to minimize her damages to an unreasonable degree, even as a defense argument,” Powell said. “This is not merely ‘intermittent’ pain—it is chronic pain, pain that will be with her for the rest of her life, with no real prospect of resolution.”

Ken Murphy of Drinker Biddle & Reath represented Ethicon and declined to comment on Powell’s opinion.

Shanin Specter of Kline & Specter, who represented the Carlinos, said he is “very optimistic” the Superior Court will uphold the judgment.

P.J. D’Annunzio can be contacted at ­215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDannunzioTLI.

A Philadelphia judge presiding over a transvaginal mesh case that resulted in a $13.7 million judgment said the award should not be disturbed on appeal.

In an opinion issued this week in response to Johnson & Johnson subsidiary Ethicon ‘s appeal of the judgment, Philadelphia Court of Common Pleas Judge Kenneth J. Powell Jr. wrote that the state Superior Court should allow the award to stand.

The judgment stems from the case of Sharon Carlino, who claimed Ethicon ‘s mid-urethral sling device failed because it was negligently designed, and that its failure caused her to suffer permanent pain during sex. The device was implanted in her in 2005 to combat urinary incontinence; however, she claimed the mesh was defective because its pores were too small, it had a tendency to degrade, it was overly friable because it was cut by a machine and not a laser, and the mesh can erode through the patient’s tissue.

After a 14-day trial last February, a jury awarded Carlino $3.25 million in compensatory damages, $250,000 to her husband for loss of consortium, and $10 million in punitive damages. Delay damages in the amount of roughly $240,000 were later awarded.

Ethicon had asked the court to either enter judgment notwithstanding the verdict, grant a new trial, or reduce the verdict award. In doing so, Ethicon raised several arguments for why the jury’s verdict should be reversed, including statute of limitations, inadequate jury instructions, and evidentiary disputes.

Powell disagreed with Ethicon ‘s argument that the punitive damages should be remitted because there was no evidence Carlino’s injuries were caused by “actual malice” or “wanton and willful disregard” for the potential harm to a patient.

“The evidence of defendant-appellant’s wanton and willful disregard for plaintiff adequately supported the jury’s award of punitive damages,” Powell said.

He added that the jury was entitled to find from the evidence that Ethicon deceptively withheld informations about the risks of having a transvaginal implant.

“The jury was free to determine that Ethicon provided warnings so deliberately misleading as to warrant the imposition of punitive damages,” the judge said.

Powell also held firm on the issue of compensatory damages in response to Ethicon ‘s argument that they be remitted as well. Ethicon argued that there was no testimony as to past or future medical expenses, and characterized her pelvic pain as intermittent.

“To characterize her pain this way is to minimize her damages to an unreasonable degree, even as a defense argument,” Powell said. “This is not merely ‘intermittent’ pain—it is chronic pain, pain that will be with her for the rest of her life, with no real prospect of resolution.”

Ken Murphy of Drinker Biddle & Reath represented Ethicon and declined to comment on Powell’s opinion.

Shanin Specter of Kline & Specter , who represented the Carlinos, said he is “very optimistic” the Superior Court will uphold the judgment.

P.J. D’Annunzio can be contacted at ­215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDannunzioTLI.