Law360, New York (October 16, 2014, 5:36 PM ET) By Sindhu Sundar — Johnson & Johnson subsidiary Ethicon Inc. fought Tuesday for a judgment as a matter of law or a new trial after a West Virginia federal jury’s recent $3.27 million verdict against it in a pelvic mesh injury suit, arguing that the plaintiff hadn’t offered enough evidence to support her claims. Ethicon argued that Jo Huskey hadn’t provided enough evidence to support her claims for strict-liability failure to warn, strict-liability design defect, negligence, or loss of consortium, claiming that she hadn’t shown that her doctor was unaware of the risks of the TVT-O sling at issue. Huskey had claimed that the polypropylene mesh in her TVT-O sling eroded, causing her severe, ongoing pain as the mesh could not be entirely removed through surgery.
Ethicon pointed to testimony by Huskey’s surgeon that she would still prescribe the sling to another patient with the same symptoms, which the device maker argued shows that additional or different warnings would not necessarily have led her surgeon to make a different decision about prescribing the device. It argued also that alternatively, they should get a new trial because the verdict was “against the weight of the evidence,” according to their motion.
“The clear weight of the evidence also establishes that TVT-O is a useful and desirable but unavoidably unsafe product that is properly prepared and contains adequate warnings and whose risks are accepted,” Ethicon said in its filing Tuesday. “For the same reasons, the great weight of the evidence demonstrates that no property of TVT-O renders the device defective or unreasonably dangerous.”
The trial concluded in early September, with the jury deliberating for about three hours before returning its compensatory damages verdict. Huskey had filed her suit in 2012, according to court records.
In February, the first case against Ethicon to go to trial in West Virginia federal court involving another TVT mesh product resulted in a directed verdict from U.S. District Judge Joseph R. Goodwin in the company’s favor, according to court records. Thousands of other pelvic mesh cases are consolidated in multidistrict litigation in West Virginia and in state courts across the country.
Huskey is represented by Edward A. Wallace and Mark R. Miller of Wexler Wallace LLP; Fidelma L. Fitzpatrick of Motley Rice LLC; and Thomas P. Cartmell and Jeffrey M. Kuntz of Wagstaff & Cartmell LLP.
Ethicon and J&J are represented by Christy D. Jones of Butler Snow O’Mara Stevens & Cannada PLLC and David B. Thomas of Thomas Combs & Spann PLLC.
The case is Huskey et al. v. Ethicon Inc. et al., case number 2:12-cv-05201, in the U.S. District Court for the Southern District of West Virginia.
–Additional reporting by David Siegel. Editing by Edrienne Su.