Ethicon mesh

A Pennsylvania court has rejected a Johnson & Johnson subsidiary's efforts to overturn a $13.5 million verdict over injuries a Philadelphia jury determined were caused by a pelvic mesh device implanted during surgery.

A unanimous three-judge Superior Court panel on April 11 affirmed the multimillion-dollar verdict in Carlino v. Ethicon, which a jury awarded in February 2016. The case was the second pelvic mesh trial in Philadelphia state court, and ended with a verdict of $3.5 million in compensatory damages and $10 million in punitive damages.

J&J subsidiary Ethicon had raised several issues to the appellate court in an effort to overturn the verdict, including contending that certain evidence and testimony should have been allowed in at trial and that the action should have been barred by the statute of limitations, but the court rejected all of those arguments.

Regarding the statute of limitations argument, Judge Victor Stabile, who wrote the majority's 53-page opinion, said Ethicon made a “spirited argument,” since the plaintiff's history of pain, advice by physicians and corrective surgery all indicated she should have been aware of the link between the problematic mesh and her injuries more than two years before she filed her suit. But, he also noted the plaintiff presented conflicting evidence on this issue, and determined that the trial court was correct to allow the jury to consider the case.

“Certain trial testimony indicates that Ms. Carlino's physicians identified the TVT as the cause of Ms. Carlino's problems in 2007 and 2010, but other medical records suggest that these physicians told her that her problems were risks of the surgery,” Stabile said.

Ethicon also challenged whether courts in Pennsylvania had jurisdiction to hear the claims, since Ethicon is based in New Jersey and the plaintiff, Sharon Carlino, is not a Pennsylvania resident.

Although the panel in Carlino noted recent Superior Court precedent rejecting that argument, the state Supreme Court is set to have the ultimate say on the jurisdiction question after it agreed to take up Ethicon's appeal on the issue earlier this week.

Carlino's case is one of nearly 90 cases that are pending in Philadelphia's Complex Litigation Center, all of which contend that Ethicon failed to adequately warn about the risks of implanting pelvic mesh.

In an emailed statement April 12, Carlino's attorney, Shanin Specter of Kline & Specter, who is also a lead attorney in the pelvic mesh litigation, said his client is “gratified by the Superior Court's affirmance of her verdict.”

“This brave woman has been horribly injured by Johnson & Johnson's vaginal mesh product that, unfortunately, they're still making and selling for permanent implantation,” Specter said. “We hope J&J will get the message and take this product off the market for the health and safety of America's women.”

In an April 12 statement, Ethicon called the Superior Court's decision “disappointing.”

“Ethicon doesn't believe this case or other out-of-state cases belong in Pennsylvania and is looking forward to the opportunity to present our arguments to the Pennsylvania Supreme Court,” spokeswoman Mindy Tinsley said in an emailed statement.

The award in Carlino came after more than two weeks of trial, with Kline & Specter attorneys Specter and Kila Baldwin, and Rich Freese of Freese & Goss representing Carlino. Ethicon was represented by William Gage of Butler Snow and Laura H. Smith of Friday, Eldredge & Clark.