PHILADELPHIA – A Philadelphia judge who presided over a case in which a Lancaster woman claimed she suffered permanent injuries to her genitalia after the installation of a pelvic mesh implant manufactured by Johnson & Johnson subsidiary Ethicon is recommending the state Superior Court affirm the action’s $41 million verdict on appeal.
As to its moves to appeal the verdict of the litigation, Philadelphia County Court of Common Pleas Judge Kenneth Powell recently termed Ethicon’s efforts as “meritless.”
Plaintiff Suzanne Emmett, 60, initially sued for damages as a result of being implanted with the Prolift pelvic mesh device – which was manufactured and sold on the market for a seven-year period, spanning from 2005 to 2012.
In June 2012, Johnson & Johnson removed Prolift from the market, after the U.S. Food and Drug Administration ordered more testing of the device be conducted.
Emmett received the implant in 2007 in order to treat prolapse, a condition in which pelvic support muscles lose strength and put painful pressure on the vagina. But for the plaintiff, she alleged that her pain had only just begun after she received the device.
Emmett claimed that the mesh had cut through into her vagina and resurfaced more than 12 times, forcing doctors to have her undergo nine separate surgeries to remove pieces of the broken device. She added this process caused her bladder contractions, incontinence and a damaging effect upon her sex life.
That effect was transferred to her husband and co-plaintiff, Michael Emmett, who said the “barbed wire”-like effect of the mesh caused damage to his penis during sexual intercourse with his wife.
The Emmetts’ attorneys claimed the mesh implant device was defective, and that defendants committed negligence in both its manufacture and in failing to warn of its dangers.
After a five-week trial, a jury found for the plaintiffs in the amounts of $15 million for compensatory damages, $1 million for a loss of consortium claim to Michael Emmett and $25 million for punitive damages.
Ethicon appealed the verdict and first claimed that Powell should have recused himself, due to his mother suing the co-manufacturer of Xarelto, Janssen Pharmaceuticals – another subsidiary of Johnson & Johnson.
In March, Powell’s colleague in the Philadelphia County Court of Common Pleas, Judge Arnold L. New, denied that request.
“Ethicon has repeatedly attempted to seek [my] recusal in an attempt to ‘judge-shop,'" Powell said.
According to Powell, the actual reason Ethicon no longer wants him to be the matter’s presiding judge is that he had cited U.S. Supreme Court precedent from 1996 in Medtronic v. Lohr, which deemed evidence pertaining to the Prolift device’s Food and Drug Administration approval process as admissible.
“[The defendants] have tried to pursue any avenue of appellate review possible – even filing a King’s Bench motion in the most recent pelvic mesh case in front of this court – to obtain [my] recusal,” Powell said.
“Ethicon chooses to ignore case law from the Supreme Court of the United States simply because it is not favorable to their claim. For all of the above reasons, this claim is meritless.”
Ethicon spokeswoman Mindy Tinsley said the company had no comment at this time.
However, plaintiff counsel Thomas Kline issued a statement on the continuing proceedings.
“We are pleased that Judge Powell addressed each and every one of the stream of meritless allegations of error, which has been the consistent, predictable post-trial tactic by Johnson & Johnson following each of the nine jury verdicts where their mesh device products have been found defective by Pennsylvania juries,” Kline said.
Philadelphia County Court of Common Pleas case 130701495
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com