In vowing to appeal trial defeat, Johnson & Johnson follows well-worn pathBenjamin Zipursky in NJ.com, March 04, 2013
Just because a pharmaceutical company suffers an expensive defeat at its first trial, doesn’t mean it will have to turn around and settle the hundreds if not thousands of waiting cases in which plaintiffs allege similar injuries.
Last week, a jury in Atlantic City ordered Johnson & Johnson’s Ethicon unit to pay $11.1 million to a woman who suffered severe injuries from its vaginal mesh device, finding the company failed to warn her surgeon about the risks, and fraudulently misled her.
New Brunswick-based Johnson & Johnson still faces 2,100 lawsuits in New Jersey and another 2,,000 nationwide in connection with the case. Other makers of the implants also face thousands more lawsuits in state and federal courts. Despite the major court defeat in what was seen as a representative case for the larger group, J&J has vowed to appeal.
Corporate giants like Merck, Roche, GlaxoSmithKline and Johnson & Johnson have shown that early courtroom losses in cases of defective medications and products mark just the beginning in a long road toward resolving the thorny issues that resulted in the massive consumer suits.
In October, Johnson & Johnson settled five lawsuits over its anti-psychotic drug Risperdal, in which plaintiffs alleged the medicine caused increased breast-tissue growth in boys. The claims were among 400 filed against the pharmaceutical giant and its Janssen subsidiary over Risperdal. Scores of suits remain.
And in January, Pfizer Inc. reached settlement with an Alabama man who claimed the company’s smoking cessation medicine Chantix led him to thoughts of suicide. The deal was struck a week before trial, and Pfizer has indicated it intends to contest more than 2,500 lawsuits filed in connection with the drug.
“The first time you lose is always meaningful, but this was just Round 1 of a long fight,” said William Mergner, a products liability attorney in Morristown, referring to last week’s Johnson & Johnson. “The plaintiffs are certainly going to be emboldened by the damage award, but J&J is not going to just fold up its tent. There will be lengthy appeals.”
In fact, early defeats have led to more litigation not less, said Fordham Law School professor Benjamin Zipursky. In Johnson & Johnson’s vaginal mesh trial, the jury awarded compensatory and punitive damages to Linda Gross, essentially saying the company acted with malice.
“With one big verdict out there, it’s unlikely future plaintiffs are going to see any reason to settle for a small amount,” Zipursky said. “And because New Jersey is not an easy state to get a punitive damage judgment, it’s reason for the defendants to regard the award as an aberration, and try to do better in future cases.”
In GlaxoSmithKline’s case, the company has settled tens of thousands of lawsuits involving its Avandia diabetes drug in the last six years, paying out millions, but still has nearly 4,000 that aren’t expected to be resolved out of court.
Roche, meanwhile, has continued to contest the thousands of lawsuits filed since 2003 alleging its Accutane acne medicine caused inflammatory bowel disease and provided inadequate labeling. The drug has also been linked to psychological and other physical health problems. The Swiss drugmaker — whose U.S. headquarters was formerly in Nutley — has lost all seven trials in Superior Court in Atlantic County since 2007, appealing each time with mixed results.
In a statement, Roche maintains “the warnings in place when these plaintiffs took Accutane appropriately described the potential risks” of the Food and Drug Administration-approved medicine, and “Roche will continue to vigorously defend these cases.” The drug was pulled from shelves in 2009.
In the J&J case, Attorney David Mazie, who represented Gross at the seven-week trial, said the jury’s decision was significant because it found Ethicon’s conduct “so egregious and reckless as to disregard the health and safety of women.” The device was meant as a safer, easier alternative to hysterectomy or other surgery to repair pelvic organ prolapse.
Mazie, whose Roseland firm is representing about 150 other clients who filed similar suits, expects Johnson & Johnson to set up a fund “in the billions” for future settlements but said no one from J&J has approached him about settlement talks.
In a statement following Thursday’s punitive damages award, Ethicon maintained it “acted appropriately and responsibly in the research, development and marketing” of the vaginal mesh device, and will “vigorously pursue an appeal.”
J&J is also fighting a separate, 10,000-person suit filed against it in connection with its metal-on-metal DePuy unit hip implant. The first plaintiff’s trial in that suit is now in a jury’s hands. In that case, attorneys said they would seek more than $180 million in compensatory and punitive damages from the health care company.
In the case of Merck’s once-popular pain medication Vioxx, it took more than a dozen trials and three years before the company agreed to pay a $4.85 billion settlement to the 60,000 patients who sued over safety issues. Merck’s general counsel at the time, Kenneth Frazier, now the company’s CEO, persuaded plaintiffs’ lawyers coordinating the cases to settle nearly all the lawsuits, according to The Associated Press.
The Whitehouse Station-based company’s eventual payout, while substantial, was a fraction of the $20 billion to $50 billion in liability analysts had initially predicted.
The Vioxx case “was a seminal one for a lot of defendants to try and follow Mercks’s playbook,” said University of Georgia School of Law associate professor Elizabeth Burch. When the company finally settled its remaining criminal and civil charges in 2011, the statute of limitations had expired for any future litigation, Burch said, and had a “pretty good idea of the strengths and weaknesses in a lot of the claims.”
The same may hold true with Johnson & Johnson’s vaginal mesh case, Burch said.
The basic idea, she said, is simple: “Protracted litigation until the statute of limitations has run in all or nearly all states, so that it would be able to achieve closure through settlement.”