Johnson & Johnson headquarters in New Brunswick, New Jersey. Photo: Wikimedia Commons

The Pennsylvania Supreme Court has declined to hear Johnson & Johnson subsidiary Ethicon's appeal of a $2.4 million jury verdict that came in the fourth pelvic mesh trial against the company in the Philadelphia Court of Common Pleas.

The jury awarded $2.2 million in Beltz v. Ethicon to plaintiff Sharon Beltz on May 26, 2017, and Ethicon and Johnson & Johnson filed post-trial motions 17 days later. The trial court denied the motions as untimely because the defendants missed the 10-day deadline for post-trial relief required under Pa.R.C.P. No. 227.1(c)(1) and entered a judgment of $2.4 million.

The defendants appealed, arguing that they did not miss the deadline because their post-trial motions were filed within 10 days of the verdict being entered on the docket. The companies said they "had relied on a respected practice manual" called "Standard Pennsylvania Practice," which states that the "'10-day period for filing posttrial motions begins running when the order of the court is entered on the docket, thus placing it on the record, and not when the order is announced by the court.'"

But in a memorandum opinion issued in December 2018, the Superior Court said Ethicon and Johnson & Johnson "should have referred to the rule and distinguishing case law when developing their post-trial strategy, rather than merely relying on a secondary source."

"While we acknowledge defendants' reference to Standard Pennsylvania Practice may have provided some guidance in their research on the issue, we point out that the secondary source relies on [1996 Superior Court case] Papalia v. Montour Auto Service Co. … for the proposition that the 10-day period for filing post-trial motions begins to run when the order of the court is entered on the docket," Judge Paula Francisco Ott wrote for the three-judge panel. "Papalia, however, concerns the untimely filing of post-trial motions from notice of a nonsuit."

Ott, joined by Judges Mary Jane Bowes and Kate Ford Elliott, said the defendants also "should have taken notice that Standard Pennsylvania Practice is not controlling authority based on the legal notices at the beginning of the hard and electronic copies."

"Therefore, defendants' excuse that they were the 'quintessential parties' who just committed a misstep and the trial court applied a 'hard-and-fast' rule based on the fact that they filed the motion a mere seven days late is disingenuous and not persuasive," Ott said.

The appeals court likewise rejected the defendants' argument that the trial court erred in determining that Beltz had been prejudiced by the late filing.

The defendants took issue with the trial court's finding that Beltz was prejudiced because the late filing prolonged the emotional trauma she endured throughout the trial and served to "abrogate the finality that she rightfully understood to be certain."

"[Beltz] did not supply 'specific facts,' … that a witness would be unavailable if a new trial were granted or that recollections had faded over the seven days," the defendants argued in the appeals brief. "Nor did [Beltz] alter her financial situation on the expectation of payment in the seven days before  the post-trial motions were filed. The trial court relied solely on [Beltz]'s testimony of shifting emotions as the basis for its prejudice finding. Under the standards in Pennsylvania cases, [Beltz]'s testimony did not demonstrate objective prejudice and could not sustain a decision to strike the post-trial motions."

But Ott said the trial judge "provided a thorough explanation of why it concluded defendants' 'late filing actually work[ed] to prejudice the interests' of Beltz."

"Recognizing again that the trial court is afforded 'broad discretion' in these matters, we conclude the court did not abuse its discretion in striking defendants' post-trial motion as untimely," Ott said.

On Aug. 20, the Supreme Court denied allocatur in a one-page order.

Counsel for Beltz, Thomas Kline and Charles "Chip" Becker of Kline & Specter in Philadelphia, said in a statement on the allocatur denial, "We are pleased that the appellate process is exhausted and that Sharon Beltz, one of thousands of women injured by Johnson & Johnson's defective devices, finally will receive full compensation, fairly awarded by a jury, for the life-long injuries caused to her."

A spokeswoman for Johnson & Johnson declined to comment.