HARRISBURG – The Superior Court of Pennsylvania ruled Tuesday that testimony from a plaintiff’s physician did not cause a Philadelphia jury to wrongly find in favor of a Johnson & Johnson subsidiary, in a pelvic mesh personal injury case decided last year.
Malgorzata Krolikowski of Media filed suit in the Philadelphia County Court of Common Pleas on Jan. 28, 2014 versus Ethicon, Johnson & Johnson Secant Medical and Prodesco, Inc.
In 2008, Krolikowski said she was suffering from stress urinary incontinence and as a result, was implanted with an Ethicon-brand TVT-Secur pelvic mesh device. However, the plaintiff stated in her suit that rather than improve, her incontinence condition worsened and she further developed severe vaginal pain that prevented her from engaging in sexual intercourse.
While the plaintiff and her counsel argued the corporate defendants rushed a dangerous and defective product for market sale to the public, defense attorneys countered that the companies were not liable or responsible for the device not alleviating Krolikowski’s condition.
A verdict was handed down on April 17, 2019, finding in favor of Johnson & Johnson and Ethicon. Though the jury did not conclude the product caused Krolikowski’s injuries, it did find the company was negligent in its design and marketing of the device.
The TVT-Secur pelvic mesh implant at issue in the case has not been sold since 2012.
An appeal to the Superior Court of Pennsylvania followed, with Krolikowski contending the trial court abused its discretion, when it permitted one of her treating physicians, Dr. Lily Arya, to offer an expert opinion when the physician was not qualified as an expert before or during trial.
“The [pelvic mesh device’s] sling was not working. That’s a failure, but I wouldn’t call that a complication. I call – the term that I use is – recurrent stress urinary incontinence. Any surgical procedure may not work. So this is a failure of her sling. I wouldn’t call it a complication of her sling,” Arya said in a videotaped deposition played at trial.
The case came before judges Mary Jane Bowes, Daniel D. McCaffery and Kate Ford Elliott. McCaffery authored the Court’s ruling.
“Here, the trial court determined that Dr. Arya’s ‘opinion’ – that Appellant’s injuries were not attributable to complications from her pelvic mesh implant – was formed during the course of her treatment of appellant, and not in anticipation of litigation,” McCaffery said.
“Indeed, the question posed to Dr. Arya, which prompted the objectionable response, was ‘At this point in your assessment of [Krolikowski], did you feel that she was experiencing any complications associated with her sling? As the trial court opined, ‘The very question situates the testimony as part of Dr. Arya’s course of treatment, rather than a made-for-litigation opinion.”
The Superior Court elaborated its rejection of Krolikowski’s appeal argument.
“We also disagree with appellant’s contention that Dr. Arya’s ‘opinion’ was not developed during her treatment of appellant and memorialized in her medical notes,” McCaffery said.
“As noted above, the question posed to Dr. Arya explicitly directed her to state if – at time she completed her assessment of appellant – she believed appellant was experiencing complications as a result of her pelvic mesh implant. Thus, her opinion was necessarily formed during her treatment of appellant. Nor do we find it significant that Dr. Arya did not specifically recall appellant as a patient.”
According to the Court, Krolikowski’s view of Dr. Arya’s testimony was more directed to its substance, rather than its admissibility.
“Therefore, the fact that Dr. Arya believed appellant’s continuing medical issues were the result of a ‘failed’ implant rather than complications resulting from the implant can be reasonably deduced from her medical records. Appellant’s additional argument that Dr. Arya was unaware of the ‘significant aggravation of her urinary symptoms after’ the implant, goes to the weight of Dr. Arya’s testimony, not its admissibility,” McCaffery said.
The Superior Court concluded the trial court did not abuse its discretion when it determined Dr. Arya’s testimony constituted permissible lay opinion testimony, and affirmed the judgment in favor of the company.
Counsel for Krolikowski at Kline & Specter declined to comment on the decision, while Ethicon expressed satisfaction with the Superior Court’s ruling.
“The Superior Court’s decision reflects the facts in this case. While we empathize with women suffering from complications following treatment of stress urinary incontinence, the evidence showed Ethicon’s TVT-Secur device did not cause the plaintiff’s alleged injuries,” Mindy Tinsley, spokesperson for Ethicon, said.
Previously, plaintiffs had been mostly successful in winning multimillion-dollar jury verdicts in pelvic mesh cases in Philadelphia, with six total victories in court totaling almost $150 million – including one verdict in January 2019 of $41 million.
More than 70 similar pelvic mesh cases, in which plaintiffs charge Ethicon with manufacturing and marketing defective products causing serious injuries, remain active in the Philadelphia County Court of Common Pleas Complex Litigation Center. Federal courts nationwide also house in excess of 10,000 similar suits.
Superior Court of Pennsylvania case 2025 EDA 2019
Philadelphia County Court of Common Pleas case 140102704
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com