We had Christine Scott on the air with her lawyer quite some time ago to discuss her trial over vaginal mesh case. Partially as a result, James Ackerman got involved in some vaginal mesh litigation and is actively interested in these issues. There are currently 70,000 vaginal mesh cases pending in federal court in a multi-district litigation. Vaginal mesh is the biggest type of civil lawsuit pending in federal court. All the rest of other cases pending in all the federal courts do not total number of vaginal mesh cases pending.
Christine Scott filed a complaint against Bard entered Dr. concerning the implantation of her vaginal mesh. Her doctor had watched a DVD on this surgical technique. However, he did not bother to read instructions for use. He implanted vaginal mesh. After the surgery Christine could not urinate, and was in pain. She had multiple surgeries to try to fix the problems and a sixth surgery to extrude mesh and to release mesh tension. Following that she was in excruciating pain due to nerve damage, had pain during sex, and lost control of her bowels. The jury awarded Christine 5 million in damages and her husband 500,000 for loss of consortium. The jury found her doctor’s negligence was not a substantial factor in causing the Scotts harm, but assigned 40% fault to her. Accordingly, the court reduced the Scotts noneconomic damages by 40% and entered judgment for 3.3 1 million per Christine and 300 for her husband.
Bard appeal. It claimed that the negligence theories were improperly instructed to the jury. Bard argued that it could not be strictly liable for design defect. The court found that Bard was right about that, but just because it was immune for strict liability does not make it immune for negligence. The court determined that the jury was properly instructed on negligence.
Bard also argued that there was not enough evidence of negligence. The appellate court cited plaintiff’s expert who testified that the design was likely to injure the patient. Bard had designed the mesh to be placed too close to the anal sphincter. Erosion of the product caused it to be in contact with her anal sphincter, which caused problems. Additionally, the product causes an increased risk of infection, which led to mesh erosion. Christine suffered that infection. For those reasons, the court felt there was enough evidence of negligence.
Bard claimed that the trial court should not have allowed evidence of the FDAs regulatory action. The court said that the FDA’s action was marginally relevant. However, during its open’s opening statement, Bard cause the issue to become relevant when it suggested that the FDA had continued to monitor and regulate transvaginal mesh and had taken no action.
Bard also claimed that Scott’s lawyer blurted out excluded topics before the jury and lambasted the court. Scott’s attorney had said “Are you now aware that Johnson & Johnson is withdrawing from the market all these transvaginal mesh kits?” The court then admonished the jury not to pay attention to what Scott’s attorney had said. Therefore, that comment was not sufficient to overturn the case.
Bard also claimed there was jury misconduct, which the court dismissed. The court affirmed the trial court’s judgment in full.
Ackerman Law Office will act as local counsel or pursue vaginal mesh cases. If you have vaginal mesh case, please feel free to contact us. We would be interested in helping victims of this horrible product.