Ethicon
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The first federal bellwether trial over a Johnson & Johnson unit’s pelvic mesh product has been tossed out by the judge overseeing the litigation.

U.S. District Judge Joseph Goodwin, overseeing nearly 13,000 cases filed in federal court over Ethicon Inc.’s mesh devices, granted a motion for judgment as a matter of law on Wednesday. Ethicon had argued that plaintiff Carolyn Lewis failed during trial to produce enough evidence that the design of its TVT device caused her to have pain during sex or that a safer, alternative design was available at the time she had it implanted in 2009.

Trial had begun on Feb. 10 in Charleston, W.Va.

“This is a sound decision by the Court,” said Matthew Johnson, spokesman for Ethicon. “While we are always concerned when a patient experiences an adverse medical condition, TVT continues to be a safe and effective option for women suffering from the debilitating effects of stress urinary incontinence.”

Lewis’s lead trial counsel—D. Renée Baggett, a partner at Alystock, Witkin, Kreis & Overholtz in Pensacola, Fla., and Tom Cartmell, co-founder of Wagstaff & Cartmell in Kansas City, Mo.—did not return calls for comment.

Six manufacturers, including Ethicon, face more than 40,000 lawsuits alleging that their mesh devices, implanted to treat urinary incontinence and pelvic organ prolapse, have caused pain and bleeding and forced some patients to undergo surgeries to remove the products.

Most of the litigation has been coordinated for pretrial purposes before Goodwin.

In addition, lawsuits are pending in state courts across the country.

Last year, a jury in Atlantic City, N.J. awarded more than $11 million to a woman in South Dakota who underwent 18 operations in six years following implantation of Ethicon’s Gynecare Prolift device.

Headed into the first federal trial against Ethicon, Baggett and Cartmell pushed for sanctions, claiming the company had lost or destroyed tens of thousands of documents related to the files of 22 current and former employees, including the hard drive of the former global president. They sought default judgments in the Lewis case and two other bellwether cases scheduled for trials later this year.

On Feb. 4, U.S. Magistrate Judge Cheryl Eifert found that Ethicon was negligent, not willful, and imposed monetary sanctions. She also allowed plaintiffs lawyers to introduce the issue at trial, but only on a case-by-case basis.

Ethicon immediately moved to exclude the issue from the Lewis trial, and Goodwin agreed on Feb. 13. On Tuesday, Ethicon filed its motion for judgment in its favor.

Goodwin granted Ethicon’s request from the bench on Tuesday, followed by a written order on Wednesday.

The next federal bellwether case scheduled for trial goes before jurors on June 23. In light of that case, and a third bellwether case slated for trial, Baggett and Cartmell filed a motion to reconsider Eifert’s sanctions order on Wednesday.

Contact Amanda Bronstad at abronstad@alm.com.