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J&J Wins “Defense Pick” TVT Mesh Case

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On February 18, 2014, Johnson & Johnson won the first MDL bellwether trial against their company Ethicon Inc. in the litigation over alleged transvaginal mesh injuries. The five-day trial over the TVT product used to treat stress urinary incontinence concluded when U.S. District Judge Joseph R. Goodwin granted a motion for judgment as a matter of law in favor of Johnson & Johnson and its unit, according to Court filings that Tuesday.

The case involved a plaintiff by the name of Carolyn Lewis ( 59 years old) that had to endure a revision/repair surgery of her TVT mesh product implanted 3 years prior due to complications. This result, although disappointing, was complicated by numerous factors that played out in the trial that is not likely to be the case in the thousands of tvm cases to follow. It is important to note however that this tvm bellwether was a defense selected case which are typically problematic cases for plaintiffs based on the initial fact and circumstances of each.

Ethicon said in a statement Tuesday that Judge Goodwin found that plaintiff Carolyn Lewis had not shown enough evidence to back her claim about defects in Ethicon’s TVT pelvic mesh product, commonly used to treat stress urinary incontinence in women. The defendants argued in their motion that Lewis could not prove that the product caused chronic pain. Defendants argued that Lewis, who received the mesh in 2009 and began her suit in July 2012, overshot the two-year limitations period since the time when she should have discovered her injury.

The negligent design claims were all that Lewis had left after the Court dismissed her failure-to-warn claims in January as well as her breach of warranty and manufacturing defect claims on legal grounds.

Before the trial began on February 10, 2014 U.S. Magistrate Judge Cheryl Eifert found that Johnson & Johnson had failed to preserve documents related to the litigation. But on the Friday before the trial, she granted a motion to exclude the spoliation allegations from the trial because they were not germane to the remaining legal theories in Mrs. Lewis’ case. Johnson & Johnson argued in that motion that it no longer mattered what information a sales representative had told Lewis’ physician, because her claim that Johnson & Johnson had failed to warn her physician of the product’s risks was no longer at issue.

One Ethicon spokesman claims that “TVT continues to be a safe and effective option for women suffering from the debilitating effects of stress urinary incontinence.” Considering Lewis’s case is just one of thousands, we aren’t so sure about that.

As we progress into 2014, many more TVM cases will be tried. To date, this is the only trial that the defense has won as the other 4 tvm trials thus far have resulted in verdicts for the plaintiffs in each of those cases.

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