Recently, a federal jury in Florida awarded $27 million to four claimants alleging medical device failure related to vaginal mesh implants produced by Boston Scientific. A few days later, federal jurors in West Virginia awarded $18.5 million – including $4 million in punitive damages – to four women for the same issues involving the same product.
These products, which were not thoroughly tested before being rushed to the market through a U.S. Food & Drug Administration loophole, have caused tens of thousands of women to suffer excruciating pain and irrevocable harm. The products were produced by some 30 companies, all of which are now facing litigation.
These woman, usually implanted with the device in order to treat pelvic prolapse or incontinence issues, end up suffering painful and debilitating side effects, often requiring additional surgery.
But these consolidated cases aren’t the only ones making it to trial. Our experienced Tampa medical malpractice attorneys understand many cases are successfully being brought by individual plaintiffs.
One of those most recent was Scott v. C.R. Bard, Inc., before the California Court of Appeal for the Fifth Appellate District. Here, both plaintiff and defendant appealed a verdict for $5.5 million in favor of plaintiff. Defendant asserted theories of negligence asserted at trial were erroneous as a matter of law. Plaintiffs argued apportionment of fault (40 percent to a surgeon who was not a named party to the case, therefore reducing the award by 40 percent) was based on an incomplete jury instruction.
Ultimately, the appellate panel affirmed the judgment. The outcome illustrates how important it is for plaintiff attorneys to ensure they have done all proper research and name all relevant defendants in the action, or else lose the opportunity to seek compensation from them forever – regardless of what the court finds. (A non-party defendant found liable can’t be compelled to pay unless a separate action is brought; However, by the time a case like this reaches its conclusion, more than likely, the statute of limitations on the underlying action has run out.)
According to court records, plaintiff and her husband filed a lawsuit against the mesh manufacturer – the wife for injury, pain and suffering and husband for loss of consortium. The woman suffered form pelvic organ prolapse, or a weakening of vaginal walls, often resulting in incontinence, pelvic pressure and pain. It can significantly impact one’s quality of life, and in severe cases, cause the woman to become disabled.
The woman underwent mesh implantation surgery to correct the problem. However, the mesh was created with a material not known to be safe for long-term implantation in the human body. As it began to erode, plaintiff suffered painful symptoms and infections ultimately requiring eight revision surgeries. She was often in excruciating pain and suffered nerve damage. She lost the ability to control her bowels or have sexual intercourse.
When she and her husband later filed a lawsuit, they did not name the surgeon in the case.
However, the surgeon’s role was relevant because she reportedly attended a one-day seminar on implantation of the device. Although she watched a video on implantation, she did not read the instructions given on each packet, and was not informed on how to recognize problems with the device or how to correctly remove it.
After numerous delays at trial, the court issued a directed verdict, finding manufacturer negligent and the negligence being a substantial factor in the couple’s harm. However, it also assigned surgeon 40 percent fault, which reduced plaintiff’s damages to $3.6 million.
Defendant argued it was denied a fair trial because the trial court erred on several decisions as a matter of law. The appellate court rejected this argument, as substantial evidence supported the verdict as it related to negligent design, negligent training and negligent misrepresentation. However, the court also rejected the assertion by plaintiff the trial court erred in its instruction on the doctor’s degree of fault because the issue of instruction was not raised until after trial, thus failing to properly preserve it for appeal.
Still, plaintiffs will receive $3.6 million in damages.
If you have been a victim of a defective medical device, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Scott v. C.R. Bard, Inc.,Nov. 19, 2014, California Court of Appeal, Fifth Appellate District
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