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Judgment As Matter Of Law Granted In 1st Ethicon Pelvic Mesh Bellwether Trial

CHARLESTON, W.Va. — (Mealey’s) The first Ethicon pelvic mesh multidistrict litigation bellwether trial ended Feb. 18 when the judge granted the defendant’s motion for judgment as a matter of law (In Re:  Ethicon, Inc., Pelvic Repair System Products Liability Litigation, MDL Docket No. 2327, Carolyn Lewis, et al. v. Johnson & Johnson, et al., No. 2:12-4301, S.D. W.Va.). 

After attorneys for Carolyn Lewis rested their case during the sixth day of trial in the U.S. District Court for the Southern District of West Virginia, defendant Ethicon Inc. moved for judgment as a matter of law.  

(Brief available.  Document #28-140220-017B.

In its brief, Ethicon, a subsidiary of Johnson & Johnson, said Lewis failed to present sufficient evidence of any element of her sole remaining theory of liability, defective design.  In addition, Ethicon said Lewis’ claim is untimely because her cause of action accrued no later than January or February 2010, and she did not file her lawsuit until July 2012. 

Judge Joseph R. Goodwin heard arguments on the motion, granted it and entered judgment in favor of Ethicon.  The judge had not issued a written ruling on his decision as of this morning. 

The trial got under way Feb. 10. 

Gynecare TVT Device At Issue 

In November 2009, Lewis, of Texas, was implanted with a Gynecare TVT pelvic mesh device made by Johnson & Johnson.  Lewis’ case was transferred into the MDL and was chosen as the first bellwether trial. 

Ethicon and Johnson & Johnson also face claims involving the Ethicon Prolift pelvic mesh device. 

Pelvic mesh devices, also known as pelvic slings, vaginal slings or transobturator slings, are made of surgical mesh.  They are surgically implanted in women to treat stress urinary incontinence or pelvic organ prolapse. 

Plaintiffs generally allege that the devices cause soft tissue injury, tissue erosion, bleeding, pain and infection and require surgical removal. 

Lewis also sought punitive damages. 

No Adverse Inference

 Previously, a magistrate judge found that Ethicon negligently failed to preserve relevant documents.  He recommended that the defendant pay plaintiff attorneys’ expenses for tracking down missing documents and said juries may be told that they can make an adverse inference about missing documents. 

On Feb. 13, Judge Goodwin granted Ethicon’s motion to exclude references to the alleged loss of certain materials and to evidence related to spoliation of evidence.  No written opinion was issued. 

According to the judge, he is presiding over more than 40,000 pelvic mesh cases involving several different manufacturers and several different MDLs. 


Lewis is represented by D. Renee Baggett of Aylstock, Witkin, Kreis & Overholtz in Pensacola, Fla., and Thomas P. Cartmell of Wagstaff & Cartmell in Kansas City, Mo. 

Ethicon and Jonson & Johnson are represented by Christy D. Jones, Anita Modak-Truran, Kari L. Sutherland, Laura H. Dixon and William M. Gage of Butler Snow in Ridgeland, Miss., and David B. Thomas, Philip J. Combs and Susan M. Robinson of Thomas, Combs & Spann in Charleston.

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