Facts

Coleen Perry and Patrick Perry sued Hung T. Luu, M.D, Ethicon Inc., and Johnson & Johnson, in connection with an allegedly defective product.

Patrick Perry dismissed his claim before trial.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Perry underwent surgery in March 2011 to treat stress-induced urinary incontinence, which involved the implantation of a device manufactured by defendant Ethicon, which was a wholly-owned subsidiary of Johnson & Johnson. Defendant Dr. Luu, a gynecologist, implanted the device. Plaintiff alleged that although her incontinence was cured, the device, a mesh, eroded into her vagina and caused Perry chronic pain. She underwent another surgery to remove the mesh, but the mesh was not entirely removed.

Plaintiff sued defendants, alleging defective design and negligence. Plaintiff contended that defendants were negligent in failing to instruct surgeons on mesh removal. Plaintiff also contended that the manufacturers negligently misrepresented the safety of the medical device. Plaintiff also asserted a failure to warn claim.

DEFENDANTS' CONTENTIONS:
Defendants disputed plaintiffs' allegations, contending that the device was the "gold standard." Defendants also contended that Perry's diet contributed to the erosion. Defendants also argued that her other surgeries, which were performed at the same time as the mesh implantation, also caused the pain, apart from the mesh.

Defendants contended that the mesh removal surgery was designed only to remove a portion of the mesh which had eroded and that was successfully accomplished. It was not the intent of the surgeon to remove the entire mesh.

Injuries

Perry claimed she suffered from chronic pain, especially during intercourse. Despite the removal of some of the mesh, she claimed she suffered from continued and worsening incontinence.

Result

Dr. Luu was ultimately dismissed on the basis of statute of limitations, without prejudice. The jury found the device was defective in design and that the manufacturers were negligent in failing to warn Perry's doctors about the dangers. The jury also found that the manufacturers negligently misrepresented the device's safety, and that Ethicon acted with malice. The jury awarded Perry $700,000 in compensatory damages plus $5 million in punitive damages.

Deliberation

3.5 days

Poll

9-3 (design defects), 10-2 (failure to warn)

Length

two months