Having verdicts upheld by appellate courts is just as important as winning them. Take, for instance, the $12.5 million jury award in 2015 to an Indiana woman in the first trial held in the vaginal mesh mass tort program in Philadelphia. The verdict — $5.5 million in compensatory damages and $7 million in punitive damages — against Johnson & Johnson subsidiary Ethicon came for Patricia Hammons, an Indiana woman who suffered permanent injury due to the medical device. As was to be expected, J&J appealed.
The plaintiff’s law firm, Kline & Specter, fought the appeal, with two appellate attorneys, Charles “Chip” Becker and Andra Laidacker, writing the brief for Superior Court. Becker, head of the firm’s appellate division, argued the case before the court. The argument presented the state appellate court with its first chance to address the U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb. That ruling stated that plaintiffs from out of state cannot sue companies in which defendants aren’t considered to be “at home” or have not conducted business related to the claimed injury. J&J argued that since Hammons was from Indiana and Ethicon’s principal place of business is in New Jersey, the trial should not have been held in Pennsylvania. But Becker noted that Ethicon had Pennsylvania ties related to mesh litigation, specifically that the company had worked with both an Allentown doctor and Secant Medical, which is based in Pennsylvania, to develop the vaginal mesh.
A three-judge panel of Pennsylvania Superior Court unanimously agreed, ruling that the verdict in the Hammons case differed from Bristol-Myers Squibb, and affirmed the verdict. It also allowed $350,000 in delay damages for Hammons, who suffered dyspareunia, or painful sexual intercourse, as the result of her 2009 mesh implant. The ruling was meaningful not only for Hammons’ case but also presumably for several vaginal mesh verdicts that followed, including verdicts a $13.5 million and $20 million by Philadelphia juries for two New Jersey women.
Noted Becker: “A verdict is the close of one chapter, but the start of another chapter. Post-trial and appellate litigation can go on for years while the parties concentrate their focus on key rulings and issues. The defendant may seek anything from a new trial to throwing out the case entirely to simply reducing the amount of the verdict. As appellate lawyers, our job is to defeat those arguments and finally close out the litigation. Barring settlement, only then can the plaintiff receive compensation for the injuries she has suffered.”
