Woman's mesh lawsuit not 'shotgun pleading' despite lack of detail

(Reuters) - Johnson & Johnson and its Ethicon unit must face a lawsuit by a Florida woman who said she was injured by their pelvic mesh products, a federal judge has ruled, even though the lawsuit contained “few facts regarding her specific situation.”

The U.S. flag is seen over the company logo for Johnson & Johnson to celebrate the 75th anniversary of the company's listing at the New York Stock Exchange (NYSE) in New York, U.S., September 17, 2019. REUTERS/Brendan McDermid

U.S. District Judge Mark Kearney in Philadelphia found Monday that, at the motion to dismiss stage, plaintiff Theresa Drumheller did not have to plead what specific mesh devices were implanted in her, what medical condition they were intended to treat or when she first experienced injuries as a result in order to proceed with many of her claims.

Drumheller’s lawsuit, filed last year, is one of tens of thousands filed over implantable mesh products in recent years, most of which have settled.

A spokeswoman for J&J, which is represented Molly Flynn of Faegre Drinker Biddle & Reath, declined to comment. Michael Galpern of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, a lawyer for Drumheller, could not immediately be reached for comment.

In her complaint, Drumheller said she underwent two surgeries to implant Ethicon pelvic mesh in 2009 and 2010. She said she subsequently developed complications including incontinence, pain, stress and anxiety.

The defendants moved to dismiss the case, arguing that the lack of detail made it a “shotgun pleading” that failed to put them on notice of the case against them. Kearney, while noting that Drumheller “pleads facts largely derived from public records relating to Ethicon’s product,” disagreed.

“She alleges many facts which, although general, tend to support her allegations Ethicon designed, manufactured, marketed, and sold a dangerously defective product which caused her injuries,” he said, pointing to her allegation that the materials used in the mesh, including polypropylene, were “biologically incompatible with human tissue.”

That was enough to support negligent design defect and failure to warn, he said.

The judge also found that Drumheller’s allegation that she experienced stress and anxiety supported her claim of negligent infliction of emotional distress stress and anxiety.

However, Kearney dismissed Drumheller’s claim for fraud, finding that Pennsylvania law did not allow fraud claims based on failure to warn. He also dismissed her breach of implied warranty claim as time barred, and breach of express warranty claim for failing to allege specific facts as the basis of a warranty.

J&J and Ethicon in 2019 reached a $117 million settlement with 41 states and the District of Columbia to resolve claims that they misrepresented the safety and efficacy of mesh devices, on top of settlements reached with private plaintiffs.

Lawyers for some plaintiffs have estimated that settlements between mesh manufacturers and more than 100,000 women may reach $11 billion.

The case is Drumheller v. Johnson & Johnson et al, U.s. District Court, Eastern District of Pennsylvania, No. 20-cv-06535.

For Drumheller: Michael Galpern of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins

For J&J and Ethicon: Molly Flynn of Faegre Drinker Biddle & Reath