C.R. Bard, one of six makers of transvaginal mesh, wants to recoup the cost of preparing for a trial that was dropped by the plaintiff shortly before it was to begin.

The Linda Rizzo product liability case was scheduled for October 8 as one of the bellwether cases against each manufacturer to be overseen by federal judge The Honorable Joseph R. Goodwin of Charleston, West Virginia. The Rizzo case was the third of the four cases selected.

vaginal sling before it's neededTwenty-five days before her trial the plaintiffs dismissed the action. Bard says the plaintiffs have not fully explained the reason and because the company spent significant resources conducting discovery including depositions and gathering witnesses, they were owed $14,096.42.

According to court documents, Bard said it had reason to believe the plaintiff’s expert witness failed the first-ever examination for board certification in the subspecialty of Female Pelvic Medicine and Reconstructive Surgery, the results of which were announced on August 26, 2013.

The subspecialty was established in 2012 and June 2013 was the first ever board certification overseen by the American Board of Medical Specialties.

What’s interesting here is that Bard settled the second transvaginal case it was facing in the same courtroom, yet the plaintiffs did not ask to recoup their court costs.

In a Response to Opposition to the fees, the attorney for Mrs. Rizzo argued the Bard is not the prevailing party because a voluntary dismissal with prejudice “does not confer prevailing party status on the other party.”

Rizzo had sued C.R. Bard alleging her Bard Avaulta Plus Anterior and Posterior BioSynthetic Support System, used to treat pelvic organ prolapse, was defective. Filed December 29, 2009, hers was a multi-count action for negligence, design defect, manufacturing defect, a failure to warn, breach of express warranty, breach of implied warranty, loss of consortium for husband Ronald, and punitive damages.

So far in the same federal court the first trial against Bard filed by plaintiff, Donna Cisson, resulted in a damage award of $2 million to compensate for her transvaginal mesh injuries. The jury in the Cisson case determined the Bard Avaulta mesh was defective in its design.

The second case of Wanda Queen settled for an undisclosed amount of money. Another case against Bard filed in California state court by Christine Scott of Bakersfield, resulted in $5.5 million in damages in June 2012 with the doctor found to be 40% responsible for her injuries.

Bard took a $292.4 million in addition to a $26 million charge in the first quarter to cover its predicted liabilities.

One has to wonder how many court losses C.R. Bard’s stockholders and accountants can accept before some sort of settlement is offered. We can wait and see.