Women claiming personal injury as a result of the mesh have filed thousands of lawsuits against its major manufacturers, including Johnson & Johnson, American Medical Systems Inc., Boston Scientific Corp., Covidien PLC and C.R. Bard Inc.
A California appeals court on Wednesday affirmed a $5.5 million verdict against C.R. Bard Inc. and a gynecologist that found the two responsible for a woman’s injuries from a vaginal mesh implant in the first such case to go to trial.
The panel rejected Bard’s argument that the negligence theories submitted to the jury were erroneous, finding instead that the jury correctly considered whether Bard, as the designer of the medical device, could face negligence claims even if it wasn’t found responsible under strict liability claims, according to the decision.
Bard had contended that the theory presented to the jury that it was responsible for training physicians on how to properly install the mesh and how to handle complications that might arise was improper, but the panel on Wednesday ruled Bard’s own actions — which included holding training sessions for doctors — showed the theory was properly presented.
“It should have been apparent to Bard that improper training could increase the risk of harm to the physician’s patients,” the panel wrote in Wednesday’s decision. “Accordingly, the theory that Bard undertook to train physicians and thus had a duty to use due care in carrying out such training was properly submitted to the jury.”
Plaintiffs Christine and Roy Scott also lost their bid to shift the gynecologist’s 40 percent share of the verdict to Bard, according to Wednesday’s ruling.
The pelvic mesh, implanted in women whose organs prolapse because of weak vaginal tissues, has become the subject of multidistrict litigation as plaintiffs from many jurisdictions stepped forward to claim they’d been injured by the devices.
Christine Scott’s was the first such case to reach a verdict. She filed suit in 2009 after several complications with her mesh and several operations attempting to fix it, court records show.
Scott was no longer able to control her bowel movements, and couldn’t have sex with her husband because of problems stemming from the device, her attorneys told the court.
A jury in July 2012 leveled a $3.6 million judgment against Bard in the suit.
The jury found Bard had acted negligently toward plaintiff Christine Scott and that its negligence was a substantial factor in the pain, nerve damage and incontinence she said were connected to her Avaulta Plus implant. The total verdict was for $5.5 million, but the jury assigned 40 percent of the blame for plaintiff Christine Scott’s injuries to her physician, who was also a defendant in the case.
On appeal, Bard argued the negligent design claim against it was barred after the jury found it wasn’t liable for failure to warn, court records show.
The company is correct that it cannot be held strictly liable for a design defect in Avaulta Plus, the panel wrote, but being immune from strict liability does not in itself bar a negligence claim, according to the decision.
“Rather, strict liability focuses not on the conduct of the manufacturer but on the product itself and holds the manufacturer liable if the product was defective,” the panel wrote.
Michael Brown of Reed Smith LLP, who represented Bard, said the company respectfully disagrees with the ruling.
“While Bard always has been very sympathetic to the course of events Christine Scott has undergone, we believe the evidence at trial confirmed that neither Bard nor its Avaulta products caused Ms. Scott’s injuries,” said Brown. “As you can see from the opinion itself, there were a number of issues that permeated the trial that did not relate to the care and treatment of Ms. Scott but nevertheless resulted in errors committed during the trial that allowed the jury to find against Bard.”
Bard is considering its options for further review of the decision, Brown said.
The Scotts are represented by Eugene R. Lorenz and Elaine Houghton.
C.R. Bard is represented by Eric John Buhr, Michael Kevin Brown, Anne Marie Grignon and Raymond A. Cardozo of Reed Smith LLP.
The case is Christine Scott et al. v. C.R. Bard Inc., case number F066039, in the Court of Appeal of the State of California, Fifth Appellate District.