The first federal transvaginal mesh trial that names manufacturer C.R. Bard begins this week in Charleston, West Virginia.
Plaintiff Donna Cisson was implanted with the Bard Avaulta Plus Posterior on May 8, 2009 in Toccoa, Georgia. Bard Urological, a division of C.R. Bard, Inc. designed, labeled, manufactured and sold the mesh. It is located in Covington, Georgia.
Ms. Cisson suffered from pelvic organ prolapse but after the mesh was implanted she sustained permanent injury, according to her complaint, which includes physical deformity, pain and corrective surgeries. She has not been able to work and her relationship with her husband had been impaired.
Last year a state lawsuit filed against Bard over the Avaulta Solo resulted in a $5.5 award to Christine Scott of Bakersfield, California. Bard has appealed the award.
The Cisson case is the first of 3,776 cases filed in the same federal court in the Southern District of West Virginia as part of a MDL (multidistrict litigation) No. 2187. The Honorable Judge Joseph R. Goodwin will coordinate the cases and issue consistent rulings so they move through the courts smoothly and quickly. In the case of mesh maker Bard, four cases called bellwether cases to test legal theory, are scheduled to be heard back-to-back.
All of the plaintiffs complain that Bard was negligent in “failing to use reasonable care in designing, manufacturing, marketing, labeling, packaging and selling the Product. The plaintiffs also say the Avaulta mesh was defective in its design and was “not reasonably safe for its intended use.” Additionally, the product did not come with the appropriate and necessary warnings as to its potential side effects, says the complaint, and in fact, the manufacturer expressed assurances to the general public, healthcare professionals and hospitals that the Avaulta mesh was “safe and reasonably fit for its intended purpose.”
Donna Cisson’s husband Dan also has a count against Bard for the loss of consortium and companionship of his wife. In the case of Christine Scott, her husband was awarded $500,000 for loss of consortium.
Judge Goodwin has agreed to allow the jury to consider punitive damages in these cases, that is, an award to send a message to the manufacturer not to repeat the bad behavior. While Bard has issued a statement that it plans to fight each action in court, if the juries tend to side with the injured, the defendant will most likely get the message that cases are not going to go their way. They may then make a practical decision to offer a settlement to make part or all of the cases filed go away.
What’s interesting is that after the Scott trial last June, C.R. Bard removed the Avaulta mesh line from the market. For a while it was available on eBay, but now is sold exclusively overseas.