CHARLESTON — West Virginia Attorney General Patrick Morrisey's office has reached a $3.9 million settlement with Johnson & Johnson regarding allegations that two of its specialty corporations engaged in unlawful, unfair and deceptive conduct in the marketing of surgical mesh devices and hip replacement systems.
Morrisey's office says the settlement, signed April 8, resolves allegations brought in a September 2019, surgical mesh lawsuit and avoids litigation of similar claims related to hip products.
"This is a really great result for the citizens of West Virginia," Morrisey said. "Even in the middle of COVID-19, our team has been working on so many critical issues for our state."
Morrisey said the state received significantly more funds by bringing the claims individually rather than joining multistate lawsuits.
"This $3.9 million settlement is actually much larger than it would have been if we had settled nationally," he said. "It's a big win, and it just goes to show if a company engages in a deceptive practice, we're going to work to vigorously enforce the law.
“The improper marketing of medical products can put the health of consumers at risk. This settlement demonstrates our office’s commitment to hold accountable corporations who ignore potential risks and side effects or omit such crucial details from the materials provided to doctors and patients.”
Also, Morrisey negotiated a 5 percent cap on attorney fees for outside counsel as it relates to the surgical mesh lawsuit. That percentage is lower than Morrisey's outside counsel policy, which is a sliding scale starting at 25 percent for the first $10 million, down to 5 percent over $25 million. Now a state law, the AG's office says the policy has saved the state more than $11.9 million since its enactment in July 2013. It became a state law in June 2016.
The surgical mesh lawsuit, filed last year in Monongalia Circuit Court, claimed Johnson & Johnson and subsidiaries Ethicon Inc. and Ethicon US LLC misrepresented the effectiveness, properties, risks and safety history of the surgical mesh products in marketing and educational materials provided to patients and doctors, in personal meetings and in published medical articles. The AG's office claimed informational and marketing materials for the companies’ surgical mesh devices consistently omitted or concealed complications.
Surgical mesh is used in the treatment of conditions caused by weakened or damaged tissues and muscles in the pelvic floor area, leading to what is commonly called a pelvic floor collapse. These conditions affect approximately one-third to one-half of women.
With the hip replacement systems, there were allegations that Johnson & Johnson and Medical Device Services Inc. (formerly known as Depuy Inc. and Depuy Orthopedics) deceptively and unlawfully marketed, promoted and sold the ASR XL, Acetabular, ASR Hip Resurfacing and Pinnacle Ultamet metal-on-metal hip replacement systems.
Johnson & Johnson and its specialty corporations denied the state’s allegations. All sides agreed to the settlement to avoid the delay, inconvenience and expense of litigation.