Johnson & Johnson has had a mixed record in hernia mesh lawsuits filed against its Ethicon subsidiary.  The company has been on the receiving end of many multi-million dollar verdicts as juries have found it responsible for the severe damage done to the plaintiffs’ bodies. However, the company has also won several cases in this series of litigation for various reasons. Recently, Johnson & Johnson had a hernia mesh case against it in New Jersey dismissed with prejudice. The reason for the dismissal was not that the hernia mesh was not defective. Instead, the court found that the plaintiff could not prove that Johnson & Johnson was, in fact, the entity responsible for the hernia mesh that injured the plaintiff.

The Plaintiff Was Injured by Hernia Mesh Implanted in a Surgery

The plaintiff Deborah Kline had a hernia mesh surgery, the date of which was unclear from the decision dismissing her case. She filed a lawsuit against Johnson & Johnson for her injuries in March 2014. There seemed to be little dispute that she sustained significant injury and harm to her body from the hernia mesh.  However, in her case, the court never reached the legal issue of whether the hernia mesh was defective. She was not entitled to compensation for her injuries or even for her case to reach a decision on the merits because the court was unclear as to who should ultimately be held accountable for the harm that she suffered.

In order for the defendant to be held liable in a product liability case, it needs to be clear that they were in the “stream of commerce” that resulted in a defective product being sold to a customer. Most often, it is the manufacturer of the device who is the responsible party for the damages suffered by the plaintiff. However, in order to recover, it is vital that the plaintiff file a lawsuit against the company that actually made the product. This is where the court held that Kline’s lawsuit failed.

The Plaintiff Claimed that Johnson & Johnson Was Responsible for Her Injuries

Kline assumed that Johnson & Johnson was the maker of the hernia mesh based on a notation that the physician made in her records.  This led to a lawsuit to claim that Johnson & Johnson defectively designed, labeled and manufactured the hernia mesh that caused her injuries. She had initially based her lawsuit against Johnson & Johnson on the fact that the surgeon’s notes referred to “Prolene mesh.” This is the type of mesh that was made by Ethicon.

However, this was not enough for the court.  The New Jersey court applied California law (since the surgery was performed in that state) and questioned whether the plaintiff had met her burden for proving who the manufacturer of the mesh was. According to the court, even though the surgeon used the term “Prolene” mesh in his notes, he could have used this term generically to refer to any kind of hernia mesh. A comparison would be that people use the term “Coke” to generically refer to any kind of Cola.

The court further looked at the hospital’s records to see whether it had purchased any hernia mesh from Johnson & Johnson during the time period at issue in the trial. The court did not find any evidence of these purchases.

The Expert Witness’ Testimony Was Not Sufficient to Persuade the Court

Absent this evidence, the plaintiff tried to rely on the testimony of an expert witness to argue that the term “Prolene mesh” in the surgeon’s notes referred to the product that was made by Johnson & Johnson. However, the court took issue with the nature of the expert’s opinion. Specifically, the court found that it was a “net opinion.”  This is a term that is used to refer to expert testimony that lacks the “why” and the “therefore.” Accordingly, the court disregarded the expert testimony and threw out the expert testimony. Thus, the plaintiff was left with no proof that the possibly defective hernia mesh was made by Johnson & Johnson.

Kline had also tried to argue that, even with the manufacturer uncertain, Johnson & Johnson should be found liable under the market share liability doctrine. This doctrine generally holds that when it cannot be proven that the defendant manufactured the defective product that it be held responsible in proportion to its share of the market. However, the court here found that the facts of the doctrine did not apply here because all hernia mesh products would need to be substantially the same and they are not.

These findings led the court to grant summary judgment to Johnson & Johnson. Summary judgment is granted when there is no dispute as to material facts of the case and the defendant is entitled to judgment as a matter of law.

Kline appealed the trial court’s judgment to the appeals court seeking to overturn the summary judgment in favor of Johnson & Johnson. However, the appeals court found that the trial court acted properly in its ruling. The appeals court also specifically noted the actions of the plaintiff’s attorney who tried to obtain evidence through discovery after deadlines in the case had passed. The court noted that the attorney had three years to get this evidence through discovery but did not do so.  For Kline, this likely means the end of the line in her attempts to be compensated for the harm that she has suffered.

This Decision Does not Affect the Other Hernia Mesh Cases

Here, it is important to reiterate that the court specifically noted that this ruling was not precedential. It has no bearing on whether Johnson & Johnson is or is not liable for damages that consumers have suffered from its hernia mesh. The decision was limited to just the particular facts of this case insofar as the proper defendant could not be named. The court did not reach the issue at all of whether the hernia mesh was defective. The court also specifically focused on the fact that the lawyer in the case did not comp

However, this calls into question the difficulty that patients face in bringing a lawsuit against the proper defendant in a hernia mesh case. While most plaintiffs have a way of tracking the maker of the hernia mesh that was implanted in their body, it is certainly possible that they may simply not know which company made the defective product. Where many plaintiffs may have difficulty is that hernia meshes may fray and migrate over time, and the side effects and complications may not become apparent until years after the initial surgery. In this event, there may be challenges recreating from their medical records the name and maker of the hernia mesh.  It may also be difficult to discern the brand of the hernia mesh without that since it can shrivel and become disfigured over time.

In general, Johnson & Johnson has had a mixed record when it comes to defending product liability claims associated with Ethicon’s hernia mesh. Ethicon was forced to recall its Physiomesh product back in 2016 after numerous patients were forced to undergo revision surgeries. The company has been inundated with lawsuits as reports of complications from its hernia mesh have proliferated. As a result, the company has faced a growing number of lawsuits.

Johnson & Johnson had previously settled a lawsuit brought by states about its hernia mesh marketing procedures.  In addition, the company has also settled billions of dollars worth of cases regarding its pelvic mesh that invoked similar issues. However, the company continues to wage legal defenses to the thousands of hernia mesh lawsuits.

There is large Physiomesh multidistrict litigation against Johnson & Johnson in Federal Court for hernia mesh products. This case has been moved to federal court in Georgia. In addition, there is a consolidated J& J /  Ethicon state proceeding being heard in New Jersey, where Johnson & Johnson is based. This state Court proceed is a Multicounty Litigation (MCL) litigation. This consolidated New Jersey case is for Prolene Hernia system and proceed hernia mesh.  Notably, Ethicon Prolene mesh is not part of this state consolidated proceeding. There are also individual state court lawsuits  or the various Ethicon mesh. Kline’s case was a state court case heard in New Jersey.

If you or a loved one has received hernia mesh in surgery and has experienced side effects or required additional surgery to fix what the hernia mesh did not, you may have a legal cause of action against Johnson & Johnson or the company that made the hernia mesh. It is vital to speak with a lawyer as soon as possible because you have a limited amount of time to file a lawsuit after you begin to experience side effects.  Your consultation with your hernia mesh attorney is at no cost to you, and you owe nothing if your attorney is not successful in helping you recover money.