Ethicon, Inc. has asked a Philadelphia judge to overturn a $57.1 million verdict awarded last month at the conclusion of Pennsylvania’s sixth transvaginal mesh lawsuit trial.
In a brief filed with the Philadelphia Court of Common Pleas on Monday, September 18th, the company argued that Ella Ebaugh waited too long to file her complaint.
“By at least June 2011, plaintiff knew or had reason to know that there was some problem with her mesh,” the company argued in a brief docketed in the Philadelphia County Court of Common Pleas on Monday. “A mesh erosion cannot occur without mesh.”
Ebaugh, 51, was implanted with Ethicon’s TVT-Secur pelvic mesh implant in 2007 to treat incontinence. She later underwent corrective surgery due to mid-urethral erosion, at which time she was implanted with a different TVT product.
In June 2011, Ebaugh was forced to undergo yet another revision surgery to remove the second implant. However, she continued to experience complications that required her to endure a fifth surgery just last year.
Ebaugh accused Ethicon and its parent company, Johnson & Johnson, of manufacturing a defective product and failing to warn doctors and patients about the risks associated with TVT mesh. Her trial concluded last month in Philadelphia, when she was awarded $7.1 million in compensatory and $50 million in punitive damages.
In its post-trial motion, Ethicon argued that the clock began running on Ebaugh’s claim as early as June 2007, when her first TVT implant failed.
“Pennsylvania law is clear that when a surgical patient knows or has reason to know that there was some problem with the surgery, the statute of limitations begins to run and the patient is obligated to investigate whether he or she has a potential cause of action,” the company said.
Ethicon is also seeking to have the punitive damages reduced, arguing that the amount awarded exceeded a statutory cap which limits punitive awards to five times the amount of compensatory damages. The company also asserted that the evidence presented at trial had not proven that it had engaged in wrongful conduct.
Nationwide, Johnson & Johnson and Ethicon have been named a defendant in more than 55,000 transvaginal mesh lawsuits.
The Ebaugh case was the fifth loss for Ethicon and Johnson in the transvaginal mesh mass tort program currently underway in Philadelphia. Four previous juries have awarded plaintiffs compensatory and punitive damages ranging from $2.16 million to $20 million.
Johnson & Johnson and Ethicon won their first and only Pennsylvania case in June. However, that plaintiff was recently granted a motion for a new hearing on damages, after arguing that the verdict was inconsistent with the evidence presented at trial.