Fourth Circuit Court of Appeals Affirms $3.27 Million Judgment Against Ethicon

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The U.S. Court of Appeals for the Fourth Circuit has affirmed a $3.27 million jury verdict against Johnson & Johnson subsidiary Ethicon

The U.S. Court of Appeals for the Fourth Circuit has affirmed a $3.27 million jury verdict against Johnson & Johnson subsidiary Ethicon, denying the company’s appeal asking for either judgment as a matter of law or a new trial.

The suit, Huskey v. Ethicon, Inc., (No. 2:12-cv-05201) was the first case to go to verdict in the Ethicon MDL pending in Charleston, West Virginia, over Ethicon’s allegedly defective transvaginal sling mesh implants. Plaintiffs Jo and Allen Huskey, represented by Edward Wallace and Mark Miller of Wexler Wallace, Fidelma L. Fitzpatrick of Motley Rice LLC and Jeffery M. Kuntz of Wagstaff & Cartmell LLP, alleged that the mesh device used to treat urinary incontinence and pelvic organ prolapse caused permanent and severe complications including chronic pelvic pain, sexual dysfunction, and loss of consortium.

On September 5, 2014, after a nine day trial, the jury returned a unanimous general verdict for the Plaintiff on all five claims, including failure to warn and design defect.

Following the unanimous jury verdict, Ethicon appealed the decision and moved for judgment as a matter of law—or, in the alternative, a new trial—on all five of the Plaintiff’s claims. In its 23 page opinion and order decided on January 26, 2017, the United States Court of Appeals for the Fourth Circuit affirmed that district court committed no reversible error and the Plaintiffs offered sufficient evidence to sustain the jury’s verdict.

In addition to determining that a reasonable jury could conclude the Defendant’s use of a heavyweight polypropylene mesh in their devices constituted a design defect, the court also stated that the jury could reasonably infer from expert testimony that using a lightweight mesh would have reduced the risk of an adverse foreign body response without a loss of effectiveness.

"We're all very pleased with the ruling and excited for Jo Huskey and the team that worked on the case," Edward A. Wallace of Wexler Wallace LLP said on Thursday. "Given the length that the court went to explain its reasoning, we hope it can be used to demonstrate to Ethicon that it needs to go ahead and resolve all of these cases for all of these women."

Wexler Wallace continues to pursue this litigation on behalf of hundreds of other plaintiffs who were harmed by Ethicon’s transvaginal mesh products.

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Edward A. Wallace
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