verdicts and settlements
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Date of Verdict:

April 28.

Court and Case No.:

C.P. Philadelphia No. 021103888.

Judge:

Arnold L. New.

Type of Action:

Products liability.

Injuries:

Chronic pain; urinary dysfunction.

Plaintiffs Counsel:

Benjamin Anderson of Anderson Law Offices, Cleveland; Daniel J. Thornburgh, of Aylstock, Witkin, Kreis and Overholtz, Pensacola, Florida; Chris Gomez of Kline & Specter, Philadelphia; Martin P. Schrama and Stefanie Colella-Walsh of Stark & Stark, Princeton, New Jersey.

Defense Counsel:

Kenneth A. Murphy and Melissa A. Merk of Drinker Biddle & Reath, Philadelphia; Rita A. Maimbourg and Julie Callsen of Tucker Ellis, Cleveland; Nils B. Snell of Butler Snow, Fort Washington; James M. Campbell of Campbell, Campbell, Edwards & Conroy, Boston.

Plaintiffs Expert:

Dr. Bruce Rosenzweig, gynecology, Chicago.

Defense Expert:

Dr. Brian Flynn, urology, Aurora, Colorado; Janet Tomezsko, urogynecology, Skokie, Illinois.

Comment:

A 12-member Philadelphia jury handed up a $20 million verdict—including $17.5 million in punitive damages—against Johnson & Johnson subsidiary Ethicon in the third pelvic mesh case to go to trial in the city.

It was also the third multimillion-dollar plaintiff’s verdict from Philadelphia’s pelvic-mesh mass tort program and the latest in a line of megaverdicts against Johnson & Johnson and its subsidiaries across the country over a variety of products.

The verdict in Engleman v. Ethicon, which also included $2.5 million in compensatory damages, was awarded April 28 in the Philadelphia Court of Common Pleas to a New Jersey woman who alleged she suffered life-altering injuries when the mesh eroded inside of her.

Plaintiff Margaret “Peggy” Engleman, of Cinnaminson, New Jersey, alleged in court papers that she had Ethicon’s TVT-Secur mesh implanted to help with her stress urinary incontinence, but her doctor discovered erosions in the material just two months later.

Engleman said in her pretrial memorandum that the eroding mesh began causing her pain and she was eventually forced to undergo three separate surgeries, under anesthesia, to remove the material. However, portions of the mesh remain in her body and she has developed chronic pain and urinary dysfunction, according to the memorandum.

Engleman alleged in court papers that TVT-Secur was “defective in design, warnings and instructions” and that Johnson & Johnson released the product to the public despite knowing that there was a significant risk that the mesh would erode inside patients.

Ethicon argued in its own pretrial memorandum that Engleman offered no evidence that the company “failed to warn of risks not within the common knowledge of pelvic floor surgeons.”

“Under New Jersey law, a manufacturer has no duty to warn of risks that are within the common knowledge of physicians,” the company said in its memorandum.

But Engleman’s attorney, Benjamin Anderson of Anderson Law Offices in Cleveland, said he thought the jury turned in his client’s favor when a former consultant for Johnson & Johnson learned for the first time, while being cross-examined, about an internal study circulated within the company warning of the dangers of pelvic mesh.

The jury ultimately agreed with the plaintiffs that TVT-Secur mesh was defective in design and that Ethicon failed to adequately warn of its risks.

According to Anderson, the jury unanimously found that the statute of limitations had not expired; 11 of 12 jurors found the mesh was defectively designed while 10 of 12 found that the design defect caused Engleman’s injuries; the failure-to-warn verdict was unanimous, as was the failure-to-warn causation finding; 11 of 12 jurors agreed to the $2.5 million compensatory damages award; 10 of 12 agreed that punitive damages should be awarded and 11 of 12 agreed that to the amount of those damages.

“Their punitive damages award is a reflection, we believe, of how despicable this conduct was, how offensive this was,” Anderson said.

An Ethicon spokeswoman said in a statement, “We believe the evidence showed Ethicon’s TVT-Secur device was properly designed, Ethicon acted appropriately and responsibly in the research, development and marketing of the product, and TVT-Secur was not the cause of the plaintiff’s continuing medical problems. Therefore, we are disappointed with today’s verdict and feel we have strong grounds for appeal.”

The verdict in Engleman came just over 14 months after a Philadelphia jury unanimously handed up an award of $3.5 million in compensatory damages and $10 million in punitive damages in Carlino v. Ethicon.

Before that, in December 2015, a jury handed up a $12.5 million award to a woman making similar claims about an Ethicon-made pelvic mesh device.

— Zack Needles, of the Law Weekly