PHILADELPHIA – Four of 15 claims in a lawsuit against Johnson & Johnson over its pelvic mesh product will proceed.
Judge Milton Younge, of the U.S. District Court for the Eastern District of Pennsylvania, ruled that way on Sept. 9 in the case of Elva Bernard, an 83-year-old woman who says she was injured when her pelvic organ prolapse was treated.
Her first surgery implanted J&J’s Prolift product, but after years of problems, a second surgery found part of the mesh “rolled up and eroded from sidewall to sidewall,” her doctor said.
Bernard conceded that many of the theories in her short form complaint should be dismissed but wanted to hold on to four others. Younge agreed, allowing the following claims to proceed:
-Negligence – failure to warn;
-Strict liability – failure to warn;
-Strict liability – design defect; and
-Gross negligence.
Expert reports and testimony from Bernard’s surgeon were enough to keep the case headed toward trial. And that trial would be in Pennsylvania and determine questions regarding its laws, rather than Delaware’s, where the second surgery took place.
“Delaware has no actual interest in this litigation; therefore, no true conflict exists after conducting an analysis of the governmental interests,” Younge wrote.
“No resident of Delaware is involved in this litigation while Pennsylvania has a clear interest in the application of its law based on the fact that its citizen suffered an injury that she alleges was caused by Defendant’s Prolift pelvic mesh.”