A jury award of $3.27 million in the case of Huskey v. Ethicon, Inc., (a subsidiary of Johnson & Johnson), was appealed by the healthcare giant to the Fourth Circuit of the United States Court of Appeals. On January 26, 2017, the court affirmed the jury’s award and denied Johnson & Johnson’s request for a new trial.
In February 2011, Plaintiff, Jo Huskey, was implanted with an Ethicon laser cut transvaginal mesh product called the TVT-O, having been promised it would alleviate her urinary incontinence. The TVT-O is a mid-urethral sling made from synthetic polypropylene mesh. Using stainless steel hooks, a surgeon stabbed through her thighs and placed this strip of synthetic polypropylene mesh through the nerve-rich pelvic area of her body and fixed it underneath her urethra. By March (the following month), the mesh was already eroding. A surgeon was able to remove a portion of the mesh, but, as often happens, the rest of it retracted behind the bone were it remains to this day.
Mrs. Huskey filed suit against Johnson & Johnson alleging that the TVT-O device it manufactured and sold for use in her body was defective, causing permanent and severe complications including, but not limited to, chronic pelvic pain and dyspareunia (pain during sexual intercourse.)
Attorneys for Mrs. Huskey argued that Ethicon’s use of heavyweight polypropylene mesh in its transvaginal implant constituted a design defect. In its decision, the appeals court agreed that the jury could reasonably infer that using an implant constructed with lightweight mesh would have reduced the foreign body reaction that took place inside Mrs. Huskey, without reduced the effectiveness of the mesh implant.
In addition to finding that Jo Huskey established that the Ethicon transvaginal mesh product implanted inside her body was defectively designed, the jury also found that there has been a failure to warn and negligence on the part of Ethicon. Damages awarded to Mrs. Huskey and her husband included:
$100,000 for medical costs
$470,000 for pain and suffering and mental anguish she suffered in the past
$2,500,000 for pain and suffering, mental anguish, and disability in the future
$200,000 loss of consortium
Huskey v. Ethicon was the first Johnson & Johnson bellwether case to be tried before Judge Joseph Goodwin in Charleston, West Virginia, and part of multidistrict litigation (MDL) that now encompasses more than 100,000 cases.
This is the third time a transvaginal mesh manufacturer has been forced by an appellate court to honor a jury’s award of compensation. Similarly, Bard’s appeal was recently exhausted in the case of Christine Scott, v. C.R. Bard, forcing the transvaginal mesh manufacturer to pay a jury award of $3.6 million. In the case of Linda Gross v. Ethicon, the plaintiff survived an appeal by Johnson & Johnson, requiring the manufacturer to pay combined compensatory and punitive damages in the sum of $11.1 million.