California will be bringing a consumer protection lawsuit, on behalf of the state, against Johnson & Johnson over its marketing of surgical mesh devices. Under California’s Unfair Competition and False Advertising laws, Johnson & Johnson could face a penalty of a maximum of $5,000 for every misrepresentation the court finds Johnson & Johnson has made. California is alleging that Johnson & Johnson made 192,016 misrepresentations regarding the effectiveness and risks of its pelvic mesh devices, which could result damages of as much as $960 million.
Thousands of women have already brought products liability suits against Johnson & Johnson claiming that they were injured by the mesh products, but California’s lawsuit will be the first state-brought, unfair business practice claim against Johnson & Johnson to go to trial. California alleges that Johnson & Johnson knew the risks of its devices and deliberately disseminated information – through brochures, advertisements, and even doctors – that hid the risks of the mesh devices.
Johnson & Johnson’s position is that it properly disclosed the risks associated with the mesh products. Johnson & Johnson claims the statements on its brochures and advertisements are accurate, and even if they weren’t, the false statements would not fool a reasonable physician.
The results of this case could have a long-lasting impact on Johnson & Johnsons’ future litigation regarding its mesh devices. If California prevails, it could pave the way for other state and private unfair business practice claims. A decisive win by Johnson & Johnson, however, could discourage further litigation over the marketing practices of the mesh devices.