Ethicon, the main defendant in the pelvic mesh mass tort in Philadelphia, is appealing a judge’s decision to revive a suit that initially ended in a win for the manufacturer.
A common pleas court judge in July determined the case, captioned Adkins v. Ethicon, should move to a damage hearing, even though a jury handed up a defense verdict in June. The Johnson & Johnson subsidiary, which is facing more than 100 lawsuits in Philadelphia over its pelvic mesh products, filed a notice Wednesday stating it plans to appeal that decision to the Pennsylvania Superior Court.
The four-page notice, which was filed by Drinker Biddle & Reath attorney Alicia Hickok, said the appeal is interlocutory, and only deals with the decision to reinstate the case.
In an emailed statement, a spokeswoman for Ethicon noted that the jury determined the product did not cause Kimberly Adkins’ injuries.
“We have filed an appeal to the Superior Court solely regarding the granting of a new hearing on damages, because we believe that it was not right to set aside what the jury decided,” spokeswoman Kristen Wallace said in the statement.
Adkins’ attorney, Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz in Pensacola, Florida, said in an emailed statement that, given that the jury initially determined the mesh had been defectively designed, he was disappointed by the immediate appeal.
“This interlocutory appeal could further delay justice for Ms. Adkins,” he said. “That said, we intend to vigorously oppose this appeal so that the jury can award Ms. Adkins the appropriate amount of damages for the harm and disfigurement that she has suffered as a result of the implantation of the defective TVT-Secur mesh device.
On June 9, a Philadelphia jury had handed up a defense verdict in the case. It was the fifth pelvic mesh case to be tried out of Philadelphia’s pelvic mesh mass tort program, and the only case to have ended in a defense win.
Philadelphia Court of Common Pleas Judge Michael Erdos’ one-page order filed July 19 granted plaintiff Adkins’ post-trial motion contending that the jury’s findings were inconsistent on the issue of whether the alleged design defect caused the injuries, and said the case should proceed to a damages hearing.
Adkins’ motion, which was filed June 19, argued the jury’s determination that the product had been defectively designed but not the cause of the plaintiff’s injuries was against the weight of the evidence.
The defense win in Adkins’ case came about two months after another Philadelphia jury awarded a woman $20 million, including $17.5 million in punitive damages. In May, a jury awarded another plaintiff $2.1 million over similar claims.
The first case to hit trial out of Philadelphia’s pelvic mesh mass tort ended with a $12.5 million award in December 2015. Soon after, the second pelvic mesh case came to a $13.5 million award, with the jury awarding $10 million in punitive damages.
As part of her post-trial arguments in the wake of the defense verdict, Adkins noted the testimony of defense expert Dr. John Wagner, who, she argued, had admitted the mesh caused her initial injuries and only disputed whether her current complaints were mesh-related.
Adkins also contended that she should have been allowed to strike one of the jurors off the case because that juror was a biopharmaceutical engineer with GlaxoSmithKline. The motion noted some comments the juror made suggesting the injuries often claimed in pelvic mesh cases stem from pre-existing injuries, and said the outcome of the case could potentially have an economic impact on the juror, given the juror’s employer.
Erdos, however, denied that portion of the post-trial motions.