California and Washington state have each filed suit against Johnson & Johnson for false advertising and deceptive marketing of a surgical mesh product for women, saying the company failed to inform both patients and doctors of severe potential complications. Attorneys General Bob Ferguson of Washington and Kamala D. Harris of California contend that Johnson & Johnson knowingly concealed the risks associated with their product, which is designed to treat common conditions in women such as stress urinary incontinence and pelvic organ prolapse, but can lead to serious complications including loss of sexual function, chronic pain and infection, permanent urinary or defecatory dysfunction and a “devastating impact on overall quality of life.”
The two states filed separate complaints against J&J and its subsidiary Ethicon Inc. in California and Washington state courts. In California, violations of the state’s unfair competition and false advertising laws are alleged. In the Washington case, “tens of thousands of violations” of the state’s consumer protection laws are alleged.
Both states are seeking injunctive relief and monetary penalties potentially in the millions of dollars “to ensure that J&J stops its deceptive practices.” Attorney General Harris said in a statement:
Johnson & Johnson put millions of women at risk of severe health problems by failing to provide critical information to doctors and patients about its surgical mesh products. Johnson & Johnson’s deception denied women the ability to make informed decisions about their health and well-being.
These complications can crop up years after the surgery and are in many cases irreversible, as removal of the mesh is nearly impossible, Attorney General Ferguson said in a statement. She said further:
It’s difficult to put into words the horrific injuries and pain many women are still suffering as a result of Johnson & Johnson’s deception. They believed they were making informed medical decisions, but that was impossible when Johnson & Johnson was spreading inaccurate information about its products’ risks, essentially duping doctors into using their own patients as clinical trials.
A spokeswoman for Johnson and Johnson told Law360 the company plans to “vigorously defend itself against the allegations,” which is a typical corporate resonse, and should not be a surprise to any lawyer who has dealth with the company. In a statement it was said:
The evidence will show that Ethicon acted appropriately and responsibly in the marketing of our pelvic mesh products. The use of implantable mesh is often the preferred option to treat certain female pelvic conditions, including pelvic organ prolapse and stress urinary incontinence, and is backed by years of clinical research.
The states’ lawsuits were only the latest in a string of litigation J&J has faced over its pelvic mesh. As we have previously reported, in late March, a New Jersey appeals court upheld a $11.1 million jury award to a woman who claimed Ethicon’s pelvic mesh caused debilitating nerve pain. The court said ample evidence presented at trial showed that better warnings of the product’s risks might have prevented her injuries. A month earlier, a Philadelphia jury returned a $13.5 million verdict against J&J and Ethicon in a separate case brought by a woman who claimed the company’s faulty mesh implant produced near constant pain, discomfort and an inability to have sex.
Both state attorneys general said that besides false advertising and deceptive marketing, J&J also misrepresented the severity and frequency of common complications and failed to disclose that its surgical mesh devices “presented risks not present in alternative treatment options.” Attorney General Harris said that J&J had sold more than 42,000 mesh devices in the state between 2008 and 2014, and that the company faces more than 35,000 personal injury lawsuits nationwide.
Attorney General Ferguson said J&J had sold 12,000 mesh products in his state during about that same time and said he would seek to impose the maximum $2,000 penalty for each violation of the state’s consumer protection laws.
California is represented by Kamala D. Harris, Judith A. Fiorentini, Jinsook Ohta, Sanna Singer and Michelle Burkart of the state Attorney General’s Office. Washington is represented by Robert W. Ferguson, Elizabeth J. Erwin, Andrea M. Alegrett and Leilani N. Fisher of the state Attorney General’s Office.
The cases are California v. Johnson & Johnson et al., in the Superior Court of the State of California, County of San Diego; and Washington v. Johnson & Johnson et al., in the King County Superior Court in the State of Washington.