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Phila. Judge Stands by $41M Pelvic Mesh Verdict and His Refusal to Recuse

Friday, August 30, 2019  
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The Legal Intelligencer

by Max Mitchell

Phila. Judge Stands by $41M Pelvic Mesh Verdict and His Refusal to Recuse

The Philadelphia judge who oversaw the pelvic mesh trial that resulted in a $41 million win for the plaintiff in January has urged the Pennsylvania Superior Court to uphold the verdict and find that he properly denied defendants’ request that he recuse himself from the case.

Judge Kenneth Powell filed an opinion earlier this week contending that defendant Ethicon‘s numerous issues on appeal are “meritless,” and asking the appellate court to affirm the verdict in Emmet v. Ethicon. The verdict included $15 million in compensatory damages and $25 million in punitive damages, as well as $1 million on a loss of consortium claim.
The 34-page opinion also outlined Powell’s reasoning for rejecting Ethicon’s efforts to have him removed from handling pelvic mesh cases, characterizing the company’s efforts as attempts to “judge-shop.”

“Here, Ethicon has repeatedly attempted to seek recusal of the undersigned in an attempt to ‘judge-shop,’” Powell said in the opinion, which was docketed with the court Wednesday.
Ethicon, which is a subsidiary of Johnson & Johnson, had made repeated requests that Powell be barred from handling pelvic mesh trials because his mother was pursuing a lawsuit against another J&J subsidiary over the blood thinner Xarelto. In March, supervising Judge Arnold New entered an order denying those requests.

In his recent opinion, Powell cited transcripts of his in-court explanation, in which he stated that, despite an allegedly misleading media report, his mother never sued Ethicon, but only the makers of Xarelto—a litigation he said he has not handled and is not familiar with. Powell also noted that he contacted New when he first learned of his mother’s lawsuit.

Powell further said the reason Ethicon wants him off the litigation is because they are unhappy with his ruling to allow in evidence of the premarket approval process with the U.S. Food and Drug Administration, known as the 510(k) process.

“Defendants are unhappy with this ruling. As such, they have tried to pursue any avenue of appellate review possible—even filing a King’s Bench motion (denied per curiam) in the most recent pelvic mesh case in front of this court, McFarland v. Ethicon—to obtain recusal of the undersigned,” Powell said.

However, Powell said that the evidence is clearly admissible under the U.S. Supreme Court’s 1996 case Medtronic v. Lohr.

“Ethicon chooses to ignore case law from the Supreme Court of the United States simply because it is not favorable to their claim,” he said. “For all of the above reasons, this claim is meritless.”

A statement by Kline & Specter attorneys Thomas Kline, who was lead trial counsel, and Charles “Chip” Becker said, “We are pleased that Judge Powell addressed each and every one of the stream of meritless allegations of error, which has been the consistent, predictable post-trial tactic by Johnson & Johnson following each of the nine jury verdicts where their mesh device products have been found defective by Pennsylvania juries.”

A spokeswoman for Ethicon declined to comment.

According to Kline, the plaintiff, Suzanne Emmet, who is in her late 50s, had three pelvic mesh devices implanted after she suffered organ prolapse. The mesh, however, ended up repeatedly eroding into her vagina, leaving her with urinary incontinence, painful bladder contractions and pain during sex, Kline said. According to Kline, she underwent nine surgical procedures and underwent more than 40 nerve treatments, including injections. Kline also said the husband’s loss of consortium claim was bolstered by evidence that a piece of mesh, “like a piece of barbed wire,” cut Michael Emmett’s penis during sex.

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