There is more good news for plaintiffs in the multidistrict litigations (MDLs) against manufacturers of transvaginal mesh implants used to treat pelvic organ prolapse or stress urinary incontinence. On Jan. 14, 2016, C.R. Bard lost its appeal of a jury’s $2 million verdict that in August 2013 found the manufacturer liable for Donna Cisson’s injuries from defective vaginal mesh implants.
Cisson’s case is the first to go to trial of the four bellwether cases in the West Virginia MDLs against C.R. Bard. There are also MDLs in West Virginia against Johnson and Johnson unit Ethicon Inc., Boston Scientific Corp., and Endo Pharmaceuticals unit American Medical Systems Holdings Inc. over their own implants. Thousands of women are bringing their allegation of painful complications and invasive follow-up procedures to lawyers, and courts are ruling in their favor.
Another big win was just a month ago. On Dec. 22, 2015, in the first case to be tried in Philadelphia’s mass tort program over pelvic mesh products, jurors awarded Indiana resident Patricia Hammond a total of $12.5 million in her lawsuit against Johnson and Johnson unit Ethicon.
A precedent is being set that the higher courts will uphold these decisions. The fourth circuit three-judge panel upheld the trial court’s decision in Cisson’s bellwether case to exclude evidence of the FDA’s approval of Bard’s product through the (510)k premarket notification program, which the court judged did not actually measure the safety of the product but instead judged its similarity to other devices already on the market.
Bard also appealed the lower court’s admission into evidence of a material safety sheet warning that materials in the mesh weren’t safe to be implanted in humans, as this wasn’t scientific data, but “heresay.” The panel found that this was admissible as evidence that Bard “received, ignored and withheld” a warning about the materials, rather than evidence that the implant itself was unsafe. Although the panel acknowledged one questionable comment by Cisson’s counsel they did not rule that this was enough to require a new trial.
The panel turned down several other arguments from Bard including that the district court gave wrong instructions to the jury regarding injury causation, and that the punitive damages on top of the compensatory damages were unconstitutionally excessive.