The majority of a transvaginal mesh lawsuit filed by a patient and her husband claiming an Ethicon pelvic mesh is defective was dismissed by a Kentucky federal judge. A few claims were preserved, however, so the medical device maker has not escaped the pelvic mesh lawsuit entirely.

The decision was made by Chief U.S. District Judge Danny C. Reeves. Judge Reeves stated that the majority of the claims brought forward by the patient were barred by statutes of limitations, while others possessed logical flaws.

Judge Reeves determined that the patient and her husband who had filed the pelvic mesh lawsuit could not pursue claims for product liability, personal injury, and loss of consortium, because they were prohibited by a one-year statute of limitations. According to the judge, the claims were not viable because the couple says they realized the mesh used in surgery was allegedly defective in 2008. Judge Reeves says that had the couple claimed that they discovered the defect when the patient had the mesh removed in 2011, they could pursue their claims.

The judge also dismissed the couple’s claims that Ethicon breached implied and express warranty by selling an allegedly defective mesh, and claims that the company misrepresented its product and failed to warn the patient that the mesh was defective. According to the judge, the couple cannot pursue these claims in their transvaginal mesh lawsuit because they did not purchase the mesh from Ethicon, and did not base any purchasing decisions on advertisements or claims made by Ethicon about the mesh.

According to Judge Reeves, the patient agreed to have the Ethicon pelvic mesh implanted in her body per the recommendation of her gynecologist. The judge noted that the gynecologist in question testified in the Ethicon pelvic mesh lawsuit, and said that he continues to believe that the mesh is generally safe and effective, despite his knowledge of the pain and injury it allegedly caused the patient.

Finally, the judge scrapped two other claims due to limitations in Kentucky law. According to the judge, Kentucky law does not allow plaintiffs to make claims for tolling and punitive damages as independent causes of action. For their part, the patient and her husband elected to no longer pursue a manufacturing defect claim.

Are There Any Claims That the Plaintiffs Can Pursue?

These decisions by the judge and the couple leave just four of the original 18 claims intact. Per Judge Reeves’ decision, the couple will be allowed to pursue their claims of unjust enrichment, fraudulent concealment, negligent infliction of emotional distress, and violation of consumer protection laws. 

Though the Ethicon pelvic mesh lawsuit was greatly reduced, it ultimately survived Ethicon’s attempts to have the claims dismissed and ended in a summary judgment, as opposed to sent to court.

This is not the only transvaginal mesh lawsuit launched against Ethicon. The New York Times reports that Johnson & Johnson, of which Ethicon is a subsidiary, has recently paid $117 million to settle transvaginal mesh claims. According to attorneys general from 41 states and the District of Columbia, the company falsely advertised pelvic mesh.

Last year, the FDA barred the sale of pelvic mesh to treat pelvic organ prolapse, over concerns that the risks of using pelvic mesh to treat the conditions could outweigh the benefits.

The Ethicon Pelvic Mesh Lawsuit is Case No. 5:19-cv-00443, in the U.S. District Court for the Eastern District of Kentucky.