A California appeals court knocked $42 million off a $344 million judgment the State won against Johnson & Johnson. The case involved Johnson & Johnson concealing the known risks of its Ethicon Inc unit’s pelvic mesh products. California’s 4th District Court of Appeal ruled Monday that even though the State had proven its case concerning the written materials J&J used to market the transvaginal mesh products, it had not shown that company sales representatives made misleading statements about them in conversations with doctors.
Johnson & Johnson issued a statement saying they were planning an appeal and that Ethicon “responsibly communicated the risks and benefits of its transvaginal mesh products to doctors and patients.” The California case was filed in San Diego Superior Court in 2016 and stemmed from a multistate investigation into the marketing surrounding Johnson & Johnson’s pelvic mesh devices. These devices were being used for the treatment of bladder problems and other similar conditions. Johnson & Johnson along with other mesh makers were already facing numerous private lawsuits by women who said they suffered pain, perforations, urinary problems, bleeding and other serious injuries. Those lawsuits have led to in excess of $7 billion in settlements to date.
In 2019, the U.S. Food and Drug Administration ordered all pelvic mesh makers to halt sales of the devices. Later in 2019 Johnson & Johnson and Ethicon reached a $117 million settlement with 41 states and the District of Columbia to resolve claims that they concealed the risks of the mesh products. California did not take part in that settlement and in a separate action it won a $344 million judgment in early 2020 following a trial.
Johnson & Johnson challenged the California judgment on multiple grounds, including that the Judge hadn’t adequately considered whether the company’s alleged misrepresentations were material. The appeals court rejected that argument, saying the Judge’s ruling was based on the “tragic and permanent consequences” suffered by patients. “While the trial court may not have uttered the precise word ‘materiality,’ the concept of materiality was unquestionably implicit in the court’s findings,” Presiding Justice Judith McConnell wrote for the panel, joined by Associate Justices Judith Haller and Joan Irion.
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