After four years of litigation, most of the manufacturers of pelvic mesh devices have begun to settle thousands of cases in an effort to shrink the largest mass tort in the country.
All, that is, except for Johnson & Johnson.
Unlike other defendants, Johnson & Johnson's Ethicon Inc. for the most part has resisted efforts to settle litigation over the devices, taking its chances in court. And so far, the record isn't great: Ethicon has lost five of seven bellwether trials in the past two years. At least six more trials are coming up this year against Ethicon — by far more than any other pelvic mesh defendant. The first two are in Philadelphia on Jan. 25 and Feb. 22.
Lawyers involved in mesh litigation are monitoring the outcomes of those trials to assess whether Ethicon, which has more lawsuits than any other defendant, could be convinced to start settling its cases.
Most of the trials are in state courts. But U.S. District Judge Joseph Goodwin of the Southern District of West Virginia, who has been pressuring all the defendants to settle the federal lawsuits over pelvic mesh devices, has scheduled the first consolidated trial against Ethicon. That trial, set for April 11, involves 37 cases against the company.
"Ethicon is and has been probably the most stalwart in terms of their public statements that they intend to defend these cases," said Fred Thompson of Motley Rice, co-lead plaintiffs counsel in the federal pelvic mesh litigation before Goodwin. "What you see with Judge Goodwin is he's raising the temperature of the water on everybody to see whether the frog will jump out before we all boil to death." Pelvic mesh devices are implanted in women to treat urinary incontinence and pelvic organ prolapse. Many women have sued, alleging that the devices eroded inside their bodies, leading to pain during sex, and subsequent surgeries.
Ethicon isn't the only mesh manufacturer that has gone to trial. A lawsuit filed against both C.R. Bard Inc. and Boston Scientific Corp. went to trial last month in Missouri's 16th Judicial Circuit Court in Jackson County. Bard, which lost the first pelvic mesh verdict in 2012 when a jury in California state court awarded $5.5 million, also goes to trial on Feb. 22 in Florida's Volusia County Circuit Court.
Boston Scientific has lost some of the largest verdicts to come out of the pelvic mesh litigation: $18.5 million and $26.7 million in separate consolidated trials in 2014, plus a $73.4 million verdict, followed by a $100 million award last year.
But Goodwin has been forcing the defendants to the settlement table, and many of the other mesh manufacturers, including Bard and Boston Scientific, have reached out to prominent plaintiffs law firms to resolve chunks of their cases. "They've shown the judge enough progress that he's not putting immediate trial pressure on any of those folks," Thompson said.
Ethicon has been a different story. In addition to setting bellwether trial dates, Goodwin has scheduled tight discovery deadlines to move hundreds more Ethicon cases through the courts.
"He's in essence ratcheting up the pressure on both sides to either settle these cases or prepare them for trial," Thompson said.
Of the 70,000 pelvic mesh lawsuits pending across the country, Ethicon has the most on its plate, with more than 23,000 lawsuits pending against it in federal court alone. But the company, represented by Butler Snow and Skadden, Arps, Slate, Meagher & Flom, has taken a more aggressive approach than its counterparts, at one point accusing plaintiffs attorneys of drumming up "baseless lawsuits" through advertisements and cold calls.
"It's their business model," said Sheila Bossier, a partner in the Jackson, Mississippi, office of Freese & Goss. "They've chosen to litigate and try to get the settlement dollars down."
Spokesman Matthew Johnson wrote in an email that Johnson & Johnson and Ethicon were "continuing to vigorously defend ourselves in ongoing litigation. We empathize with all women suffering from pelvic organ prolapse and stress urinary incontinence, conditions that can be serious and debilitating, and we are always concerned when a patient experiences adverse medical events. The use of implantable mesh is often the preferred option to treat certain female pelvic conditions, including pelvic organ prolapse and stress urinary incontinence, and is backed by years of clinical research."