Big Loss in Pelvic Mesh Cases

Big update in the pelvic mesh lawsuits and it is not a good one.  A Texas jury yesterday found for Johnson & Johnson’s (J&J) Ethicon division in a pelvic mesh casespelvic mesh claim.  Twelve Dallas jurors found that the Prosima pelvic mesh, given to women who suffer from pelvic organ prolapse, was not defective in its design and that J&J did not fail to properly inform doctors of the risks and problems associated with this product.   It was no slam dunk.  Unlike a lot of states, Texas does not require a unanimous verdict in civil cases.  So a 10-2 vote was good enough for J&J to eke out a win.

It is just one case, but I’m not going to lie, this was one the Plaintiffs’ wanted to win.  I’ll be honest about something else.  I’m surprised J&J let this case go to trial.  They have been picking off cases to avoid a bellwether effect on settlement value that is going to wildly increase the expectations of Plaintiffs and make these cases that much harder to settle.  On this one, they gambled and won.

I don’t want to downplay the loss — I’m sure they are celebrating in the offices of attorneys everywhere, who handle these types of cases.  They are hoping women and their lawyers read about this verdict and get discouraged.  But some perspective is required: this is just one battle in what has been a very long war, and Ethicon has been losing this war.  My math has them 2-4 at trial in these cases.

I also wonder about this case.  There were real weaknesses in this case that made the case less attractive to jurors than most mesh cases?  Did the judge not allow some evidence in, that you would expect to be admitted in most cases?   I don’t know and I don’t think we will ever know unless you sat through the entire trial.

The Case

The Plaintiff, in this case, filed suit in 2014.  After insertion of a Prosima pelvic mesh, she had nothing but problems.  She brought lots of claims for the pain and incontinence that she endures.  However, there is one key claim in every one of these cases: J&J/Ethicon did not provide adequate warnings to doctors and/or patients about the potential side effects that either they knew or should have to know about. More specifically, the lawsuits allege that J&J/Ethicon knew the mesh might make things worse for women by degrading their pelvic tissue, but they kept that fact to themselves despite the available evidence and continued to market the product like crazy because they were making a fortune off of it.

Overview of the Cases

Nothing is certain in mass tort litigation.  But I think the overwhelming likelihood is that you will see massive settlements in these pelvic mesh cases in the not so near future, not just the Ethicon cases but all of them.

What is the holdup?  This is a question tens of thousands of women are asking. The reality is that these trials are a part of the bickering over price. There is so much money at stake and the values of these claims are either rising or falling, like a stock price.  Yesterday, for the pelvic mesh litigation, the Dow dropped 300 points.  But the market opens again the next day, and the price looks for a new direction.

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