J&J's Vaginal-Mesh Costs May Rise If $5 Million Deal Is a Guideby and
Settlement became public when woman's lawyer sought legal fees
New Jersey case `presented unique circumstances,' J&J says
Johnson & Johnson hasn’t disclosed how much it’s set aside to cover the risk from lawsuits by women who say they were injured by vaginal-mesh inserts, or what the company has already paid to settle such cases confidentially. But a $5 million settlement recently became public, giving a glimpse of how much it could cost to resolve the claims.
The accord was made part of the public record when the plaintiff’s lawyer asked a judge to approve his legal fees in the case. While it’s just one suit -- J&J still faces more than 46,000 such cases, according to its regulatory filings -- judges in New Jersey and West Virginia are pressing the company to resolve them.
The case that was settled “presented unique circumstances,” J&J said in an e-mailed statement. While the estimated cost of the mesh litigation isn’t broken out, “the company appropriately discloses overall litigation expenses.”
According to a court filing in Hackensack, New Jersey, the company agreed in September to pay $5 million to settle a lawsuit with Pamela Wicker, who claimed J&J’s Ethicon unit’s Prolift mesh eroded inside her, making sex painful and forcing her to endure multiple surgeries to remove the material. Before it settled, Wicker’s suit was to be the second so-called bellwether case that would help resolve the 8,700 such claims filed in New Jersey, according to court filings. In 2013, the first bellwether ended with an $11.1 million jury verdict against J&J.
‘A Bad Sign’
“This settlement is a bad sign because it shows investors it’s going to cost a lot more to deal with this liability than people expected,” said Carl Tobias, who teaches product-liability law at the University of Richmond in Virginia.
While J&J paid less to settle with Wicker than it lost by going to trial in the earlier case, her pay-out looks big when compared to what J&J has been said to have paid out in other settlements. In January, Bloomberg reported that J&J agreed to pay $120 million to resolve 2,000 to 3,000 mesh-related suits, citing people with knowledge of the agreement.
The company has had a mixed record before juries in the mesh cases. It won several cases, but had losses in Texas, California and Pennsylvania. In February, a Philadelphia jury awarded $13.5 million to another woman who said she’d also been hurt by Prolift. And the New Jersey verdict for $11.1 million was upheld last month on appeal.
“From time to time we have agreed to resolve some cases,” New Brunswick, New Jersey-based J&J said. “We will not discuss the terms of resolutions, nor discuss our ongoing litigation strategy.”
The company is appealing the Philadelphia verdict, and still reviewing whether to contest the New Jersey decision that was upheld. J&J pared litigation expenses to $141 million in 2015, down from $1.2 billion in 2014 and $2.2 billion in 2013.
Wicker’s lawyer, Adam Slater, detailed the $5 million payment in a Nov. 3 filing seeking a judge’s approval for his $1.65 million legal fee that will come out of the accord. He declined to comment on the settlement, which hadn’t been made public until Judge Brian Marinotti approved the request.
Cases related to vaginal-mesh inserts, which bolster sagging organs and treat incontinence, have multiplied since they began in 2011, with more than 100,000 suits filed against more than a half-dozen device makers.
J&J faces the most claims, and began pulling some product lines off the market in 2012 after the U.S. Food and Drug Administration ordered manufacturers including J&J, Boston Scientific Corp. and C.R. Bard Inc. to study injury rates. While Boston Scientific and Bard have also settled some cases, they continue to fight claims and defend the products. Each has set aside more than $1 billion to deal with claims over the inserts.
In January, FDA officials tightened regulations after finding the inserts should be classified as higher-risk products when used to shore up organs.
The Wicker case is Wicker v. Ethicon Inc., ATL-L-6951-10, Superior Court of New Jersey, Bergen County (Hackensack). The consolidated federal case is In Re Ethicon Inc. Pelvic Repair System Products Liability Litigation, 12-MDL-2327, U.S. District Court, Southern District of West Virginia (Charleston).