A $20 Million Verdict Over a Prolift Mesh Implant
After trial: The Seventh Circuit affirmed the $20 million judgment in full on January 14, 2020, rejecting Ethicon's design-defect and failure-to-warn arguments on appeal. No further appeal has been reported.
Won by Wagstaff & Cartmell.
A federal jury in Hammond, Indiana found that Ethicon's Prolift transvaginal mesh was defectively designed and inadequately warned against, awarding Barbara and Anton Kaiser $35 million. A judge reduced the punitive damages, leaving a $20 million verdict that the Seventh Circuit affirmed in full in 2020.
What happened
In January 2009, Barbara Kaiser had a Prolift Anterior Pelvic Floor Repair System implanted at Community Hospital in Munster, Indiana, to treat pelvic organ prolapse, a condition in which weakened tissue lets pelvic organs sag out of position. Prolift is a synthetic mesh device designed by Ethicon, a Johnson & Johnson subsidiary, to be threaded through the vagina and anchored in the pelvic floor to hold those organs up.
The mesh did not resolve Kaiser's problem. It created new ones. She developed chronic pelvic pain and the mesh itself began to contract and shrink inside her body, a known complication in which the material stiffens and pulls on surrounding tissue. She underwent a second surgery to remove part of the implanted mesh, though a device woven into pelvic tissue cannot always be fully taken back out.
Kaiser and her husband Anton sued Ethicon and Johnson & Johnson in 2012, arguing that the Prolift's design was defective and that the companies had not adequately warned physicians or patients of the risks it carried, including the type of mesh contraction Kaiser experienced. The case eventually reached trial in the Northern District of Indiana, before a nine-member jury sitting in Hammond.
Over nine days of trial in March 2018, the jury heard the Kaisers' account of the device's design and the company's internal knowledge of its risks, set against the company's defense of the product. The jury sided with the Kaisers, finding Ethicon liable for negligent design and failure to warn, and returned a verdict of $10 million in compensatory damages and $25 million in punitive damages, a total of $35 million.
The trial court later reduced the punitive damages through remittitur, an order narrowing an award a judge finds excessive, bringing the punitive figure down to $10 million and the total verdict to $20 million.
Ethicon appealed to the U.S. Court of Appeals for the Seventh Circuit, challenging both the design-defect and failure-to-warn findings. In a decision written by Judge Diane Sykes and issued January 14, 2020, the panel rejected Ethicon's arguments across the board and affirmed the $20 million judgment.
Barbara and Anton Kaiser were represented at trial and on appeal by Jeffrey M. Kuntz of Wagstaff & Cartmell, along with Edward A. Wallace of Wexler Wallace and Thomas O. Plouff of Costello, McMahon, Burke & Murphy.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Justia: full text of the Seventh Circuit's January 14, 2020 opinion affirming the judgment·Archived copy
- 2.The Indiana Lawyer: trial coverage naming the case number, implant date, complications, and plaintiff's trial attorneys·Archived copy
- 3.Mesh Medical Device News Desk: independent coverage of the remittitur to $20 million and the Seventh Circuit appeal·Archived copy
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