A New Jersey appeals court has thrown out a lawsuit against Johnson & Johnson (NYSE:JNJ) and its Ethicon unit because the woman who had mesh implanted to correct a hernia could not identify its manufacturer.
Plaintiffs Deborah Kline and her husband, Jeffrey Derstine, sued the companies in 2014, alleging that the polypropylene mesh implanted in Kline’s body in 2007 caused “significant medical complications and damages.”
Kline alleged that Ethicon and Johnson & Johnson defectively designed, manufactured, and labelled the mesh. However, Kline was unable to present competent evidence that the defendants, as opposed to some other medical device manufacturer, produced the mesh that allegedly caused her harm and her lawsuit was dismissed with prejudice. The court also barred further discovery as untimely and likely futile.
On appeal, Kline argued that the trial court should have allowed her expert witness to testify that the mesh, removed six years after implant, was made by Ethicon. The surgeon’s operative report referred to “Prolene mesh,” a registered trademark of Ethicon and Johnson & Johnson, but said he used the term generically to refer to any polypropylene mesh, according to the appeals court ruling. The companies’ sales records showed they sold no Prolene mesh to the hospital at the time.
Kline also contended she should have been able to depose a corporate representative and that, even if she could not identify the maker of her mesh, the court should have allowed her lawsuit to proceed on a “market share theory” of liability.
The trial court judge ruled that Kline’s counsel had more than three years to discover evidence to identify the manufacturer of Kline’s mesh, which her expert had preserved in a jar. The appeals court judges agreed with that ruling and with Judge Nelson C. Johnson’s decision barring further discovery by Kline’s attorneys as untimely.
“While Ethicon empathizes with any patient who experiences medical complications, the court appropriately dismissed this case because it lacked a basic prerequisite of demonstrating evidence that the product was produced by Ethicon,” a company spokeswoman said in an email to MassDevice.