Johnson & Johnson (NYSE:JNJ) scored a win today in the 1st bellwether personal injury lawsuit against the TVT pelvic mesh made by subsidiary Ethicon when a federal judge tossed the case out of court.
Judge Joseph Goodwin of the U.S. District Court for Southern West Virginia issued a directed verdict today in Charleston, ordering the case dismissed and stricken from the record, according to court documents.
Plaintiff Carolyn Lewis was 1 of thousands of patients who’ve sued pelvic mesh makers including Ethicon, C.R. Bard (NYSE:BCR), Boston Scientific (NYSE:BSX), Endo Health Solutions (NSDQ:ENDP), Cook Medical and Coloplast (CPH:COLO B). Some of the cases in various federal courts have been consolidated into multi-district litigation under Goodwin.
Ethicon argued that Lewis must show that a defect in the design of the TVT mesh, used to treat female urinary incontinence, caused her injuries, rather than merely showing that the product itself caused the injury as Lewis maintained.
"Plaintiff has failed to show by expert testimony that a defect caused her injuries, which is fatal to her design-defect claim, regardless of whether her claim is styled as one sounding in strict liability or negligence," according to the documents.
Goodwin today agreed, granting Ethicon’s oral motion for judgment as a matter of law, the documents show.
"This is a sound decision by the court," Ethicon spokesman Matthew Johnson said in prepared remarks. "While we are always concerned when a patient experiences an adverse medical condition, TVT continues to be a safe and effective option for women suffering from the debilitating effects of stress urinary incontinence."
The decision follows Goodwin’s ruling last week barring Lewis from telling a jury about the loss or destruction of thousands of pages of evidence by Ethicon. Earlier this month, Magistrate Judge Cheryl Eifert found that, although Ethicon did destroy or lose "documents that should have been preserved in anticipation of this litigation," "Ethicon’s loss of evidence was negligent, not willful or deliberate, and plaintiffs have failed to establish a resulting prejudice sufficient to support the severe sanctions of default judgment, striking of defenses, and the offering of an adverse instruction in every case," according to court documents.
That prompted Ethicon to ask Goodwin to bar Lewis from telling the jury about the lost or destroyed documents, according to court records. Goodwin agreed Feb. 13, ordering that evidence of the lost or destroyed documents be excluded from the Lewis trial.
Two other bellwether trials are on tap in the Ethicon MDL, according to the records: Huskey, et al. v. Ethicon, Inc., et al. and Edwards, et al. v. Ethicon, Inc., et al.