By Daniel Siegal
Law360 (April 22, 2019, 7:58 PM EDT) — Johnson & Johnson has agreed to pay $9.9 million to settle the state of Washington’s allegations that its Ethicon subsidiary downplayed the risks of its surgical mesh devices in its marketing, avoiding a Seattle trial that was about to begin Monday.
Hours after the trial was scheduled to start before King County Superior Court Judge Suzanne R. Parisien, Washington Attorney General Bob Ferguson announced the deal.
“Johnson & Johnson’s knowing deception caused Washington women to suffer in deeply personal ways,” Ferguson said in a statement. “I’m proud of my team for holding a powerful interest accountable for its egregious conduct — and look forward to providing millions of dollars in relief to assist those who were harmed.”
Roughly 14,000 women in the state have had J&J surgical mesh devices implanted in them, and hundreds of those women have been harmed by the devices, according to the Washington attorney general’s office. Those harms range from having to undergo an additional medical procedure to having their “quality of life impacted dramatically.”
Ferguson’s announcement said the $9.9 million paid by J&J would be used to assist women who received pelvic mesh implants, and it would come on top of what they might win in their own lawsuits. A formal claims process will be unveiled at a later date, according to the attorney general.
Ethicon released a statement Monday confirming the settlement and saying the company was “pleased” to have resolved the lawsuit.
“Ethicon’s devices for treatment of incontinence are recognized as the standard of care by surgeons and medical professional societies in Washington and around the world,” the company added. “Any contrary allegations are at odds with the views of leading doctors and medical groups, as well as the FDA.”
Ethicon also thanked the medical community of Washington in its statement, saying many of its members had publicly disagreed with the lawsuit’s allegations.
Ferguson filed suit in May 2016, alleging J&J and Ethicon knowingly concealed the risks associated with their product, which is designed to treat common conditions in women such as stress urinary incontinence and pelvic organ prolapse. The mesh devices can lead to serious complications including loss of sexual function, chronic pain and infection, permanent urinary or defecatory dysfunction and a “devastating” impact on women’s quality of life, according to the complaint.
These complications can crop up years after the surgery and are in many cases irreversible, as removal of the mesh is nearly impossible, Ferguson said in a statement when the suit was filed.
Ferguson alleged “tens of thousands of violations” of Washington’s consumer protection laws.
Ferguson’s suit was filed the same day that then-California Attorney General Kamala D. Harris filed her own suit in California state court accusing J&J and Ethicon of violating the state’s false advertising laws. That suit is pending and is slated for trial on July 12, according to the case docket.
Monday’s settlement comes less than a week after a Philadelphia jury sided with Ethicon in a trial over an allegedly defective pelvic mesh implant.
Despite agreeing that Ethicon had negligently designed, marketed and sold its TVT-Secur mesh implant, the jury found that the negligence was not a cause of any of the injuries that Philadelphia-area resident Malgorzata Krolikowski said she suffered from the device.
Washington state is represented by Daniel Allen, Breena Roos, Katharine Barach, Heidi Anderson, Beth Howe, Patricia Bower and Jeffrey Grant of Washington’s Office of the Attorney General.
J&J is represented by O’Melveny & Myers LLP, Covington & Burling LLP, Calfo Eakes & Ostrovsky PLLC and Butler Snow LLP.
The case is State of Washington v. Johnson & Johnson et al., case number 16-2-12186-1 in the King County Superior Court in the State of Washington.
–Additional reporting by Steven Trader and Matt Fair. Editing by Kelly Duncan.
Reference – https://www.law360.com/articles/1152253/j-j-settles-wash-ag-s-pelvic-mesh-case-just-before-trial