Trial News

A split Pennsylvania appellate court has affirmed an order awarding the plaintiff a new trial in a lawsuit against Ethicon, Inc., and Johnson & Johnson over injuries the plaintiff suffered from allegedly defective pelvic mesh. The jury found for the defendants on causation, but the trial court ruled that the verdict was against the weight of the evidence. (Adkins v. Johnson & Johnson, 2020 WL 1873995 (Pa. Super. Ct. Apr. 15, 2020).)  

Kimberly Adkins sued the defendants in Pennsylvania state court in 2013, seeking damages for injuries she suffered after being implanted with a pelvic mesh device—a “TVT SECUR”—to treat urinary incontinence. After the device eroded into her vagina, Adkins suffered bleeding and pain, especially during sex. As a result, part of the mesh had to be surgically removed. Adkins alleged that the pelvic mesh was defectively designed and that the defendants failed to provide adequate warnings about its risks.

In June 2017, a jury returned a verdict for the defendants, finding that the device was “defective in design and that [the defendants] failed to adequately warn pelvic floor surgeons of the [Device’s] risks of harm” but that “neither the design defect nor the inadequate warnings proximately caused injury to [Adkins].” In July 2017, the trial court granted Adkins’s motion for a new trial, agreeing that the verdict was against the weight of the evidence. After initially ordering that only damages would be reconsidered, the trial court ultimately ruled that the defendants’ liability should also be relitigated. The defendants filed an interlocutory appeal.

First the defendants argued that Adkins’s posttrial weight of evidence challenge was untimely, which the court rejected. Adkins argued in her motion that the jury’s finding of no causation was against the weight of the evidence because the “medical testimony was undisputed that Adkins suffered some injury because of the Device.” Because this challenge to the jury’s conclusion “only ripened after the verdict was announced” and could not have been corrected in pretrial or trial proceedings, the appellate court found that raising it for the first time in the posttrial motion was proper.

The court also rejected the defendants’ theory that the jury’s causation finding was not against the weight of the evidence. Under Ohio law, which the parties agreed would govern nonprocedural aspects of the case, a product is defectively designed if, when leaving the manufacturer’s control, the “foreseeable risks associated with its design exceeded the benefits associated with that design.”  

The court noted that, as a “threshold matter,” the jury had determined that the device was “defective because its risks outweighed its benefits.” The court then pointed to the testimony of the defendants’ causation expert, who agreed on cross that the device caused some of Adkins’s injuries. Thus, the court wrote, it is undisputed that Adkins was injured by a device the jury found to be defective and that “because the Device caused these injuries, Adkins had to undergo surgical removal of the Device. Based on this record, the jury’s finding that the device did not cause injury to Adkins was against the weight of the evidence.” Affirming the trial court’s order for a new trial, the court remanded.

“We are pleased with the court’s decision that the judge got it right at the trial level, and we obviously agree,” said Pensacola, Fla., attorney Bryan Aylstock, Adkins’s trial attorney. “There is no question that Johnson & Johnson’s mesh product was both defective and caused severe harm to Ms. Adkins, and we look forward to presenting this evidence to another jury.”

Philadelphia attorney Charles “Chip” Becker, who argued for the plaintiff before the appellate court, echoed Aylstock's comments. “We’re confident our badly injured client will prevail, as nearly all plaintiffs have prevailed in Philadelphia and across the country in transvaginal mesh cases against Johnson & Johnson,” Becker said.

Adkins is one in a series of Philadelphia County pelvic mesh cases—previously covered by Trial News—that have been filed against Ethicon and Johnson & Johnson. This ruling means that only one of these cases (Krolikowski v. Ethicon Inc., No. 140102704 (Pa. Ct. Com. Pl. Phila. Cty. filed Jan. 28, 2014)) has resulted in a jury verdict for the defense—and in that case, the jury also found for the defendants on causation only.

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