Northern California Record

Tuesday, November 19, 2019

Marketing expert insists J&J pelvic mesh promotional material misleads consumers

Lawsuits

By John Sammon | Jul 23, 2019

Pratkanis
Pratkanis

SAN DIEGO – A marketing expert on Tuesday in a trial to determine if Johnson & Johnson sold injury-causing pelvic mesh implants to women by ignoring the dangers and through deceptive sales tactics continued to insist to J&J lawyers the company had downplayed the risks to make sales.

“That 1 million women are happy is inherently misleading,” said Dr. Anthony Pratkanis, a professor of psychiatry at the University of California Santa Cruz.

Pratkanis referred to the number of women J&J promotional materials had said were satisfied with the results of having mesh devices implanted in their pelvic region, designed to help a sagging or leaking bladder, a condition called stress urinary incontinence (SUI).      

 The trial in the San Diego Superior Court is being streamed live courtesy of Courtroom View Network.

The state of California, through its Attorney General Xavier Becerra, sued Johnson & Johnson over a pelvic mesh device called Prolift, made by its subsidiary Ethicon, for allegedly causing vaginal injuries in women and allegedly for selling the product through the use of deceptive marketing practices. Prolift is a clear polypropylene mesh with eight thin connecting arms.

Since 2012, numerous lawsuits have been filed by individual women who had mesh devices implanted and later alleged they suffered intense pain and side effects that required the devices to be surgically removed with great difficulty.

Washington State sued Johnson & Johnson earlier this year in a similar type case, but the company agreed to pay $9.9 million to settle with no admission of wrongdoing. The case in San Diego is the first at trial by a state attorney general over the implant devices and seeks damages under unfair competition and false advertising laws.

The company reportedly sold 42,000 Ethicon pelvic mesh devices between 2008 and 2014, designed to help a sagging bladder condition called pelvic organ prolapse, or POP.

Pratkanis appeared for a second day as an expert witness for the state. He told attorneys from the California Attorney General’s Office that Johnson & Johnson had developed a “halo effect,” using a famous brand name to gain consumer trust.

He said company promotional materials sought to portray the company as a helper of women, using language that appeared to give medical advice such as, “see your doctor for advice.”

“The name (J&J) is trusted,” Pratkanis said.

Part of the trust Pratkanis indicated came from the company’s long-time fame as a producer of baby powder and the image of maternal-infant bonding the company had achieved over the years.

“Is the halo effect a key to the marketing?” Pratkanis was asked.

“Yes,” he responded. “The trust finds a platform to drive the (advertising) message home.”

State attorneys exhibited a chart that Pratkanis said were tactics to sell mesh slings. The three included portrayal of SUI and pelvic organ prolapse (POP) as common and treatable conditions, the encouragement of women to self-diagnose, and directing women to use doctors who use J&J products.

“Is the use of social influence tactics necessarily misleading?” he was asked.

“Not necessarily,” Pratkanis said.

“Do you believe these (tactics) were used in a fair and honest manner?”

“No,” Pratkanis said.

He called them deceptive and misleading.

Under cross examination, attorneys for Johnson & Johnson asked Pratkanis if he thought his analysis report was thorough.

“You relied on the Attorney General’s Office for documents?”

“I asked for as many (documents) as possible,” Pratkanis said.

“Did you consider what patients go through when they consider surgery?”

State attorneys objected to the question as vague. San Diego Superior Court Judge Eddie Sturgeon sustained the objection.

Pratkanis explained he did not look at the doctor-patient relationship for his analysis, but at company marketing tools including brochures and websites.

“Did you take into account a reasonable consumer in your take-aways (conclusions)?”

Again state attorneys objected and again the objection was sustained.

Attorneys for J&J attempted to get Pratkanis to agree that not everyone who reads promotional material would automatically believe the information.

“Not everyone,” Pratkanis conceded.

“Someone can recognize what it’s communicating (advertising) and not believe it?”

“Correct,” Pratkanis said.

Pratkanis was asked if a reasonable consumer would come away with the idea there were no down-sides to the mesh implant procedure.

He said the materials focused on the risks of the surgical procedure and not risks from the polypropylene mesh itself.

“The consumer comes to a conclusion there is no downside?” Pratkanis was asked.

“The consumer is taking away a message this (product advertising) is a complete discussion of the risks,” he said.

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