C.R. Bard Inc. must pay a Bakersfield woman $5.5 million in damages in what promises to be the first of thousands of vaginal mesh injury cases to go to trial.
Jurors in a Bakersfield, California state court determined July 20th, that the Avaulta Plus Biosynthetic Support System vaginal implant caused Christine Scott’s chronic pain, mesh erosion, and incontinence and that she and her husband deserve the damage award. The company announced it plans an appeal.
Scott’s doctor who implanted the device in 2008 is responsible for paying 40% of the award amount while C.R. Bard must pay the remaining 60%.
Lawyers for Scott told Bloomberg that the jury was particularly interested in what most Americans don’t know – that the company does not test medical devices and is not required to prove safety and efficacy to the FDA before marketing that device. Jurors were told the devices were tested in rats and rabbits before they were used in women.
That led to the conclusion that Bard was negligent in its handling of the synthetic vaginal mesh which was used in Scott to correct stress urinary incontinence.
The Bakersfield woman said the hardest part was having to keep quiet watching women continue to be hurt since it’s estimated that in 2010 approximately 200,000 women had synthetic mesh implanted to treat stress urinary incontinence.
While Scott was awarded $5 million, her husband, Roy, was given $500,000 for loss or consortium with his wife.
This is the first of many more cases to come. Bard is facing more than 1,000 lawsuits alleging the product caused organ damage, mesh erosion, pain, nerve entrapment and disability, among other complications. Those cases have been consolidated in Charleston, West Virginia in multidistrict litigation (MDL) which allows cases where similar injuries are alleged to move more swiftly through the courts. A woman’s lawsuit can still be tried individually and an award is given to the plaintiff depending on the degree of her injury.
In a statement issued to Bloomberg, Bard said the company empathizes with Scott but does not believe the Avaulta mesh product caused her injuries. What had to resonate with the jury is the fact that the Avaulta Plus was removed from the U.S. market earlier this month while it is still sold worldwide.
The first “bellwether” case from the Bard MDL (No.2187) is set for trial February 5, 2013 in the Southern District of West Virginia. That case will set a precedent as the jury listens to evidence and decides either for the woman and her family or for C.R. Bard.
The bellwether trials can indicate more cases should be heard or a settlement is the best way for the company to go. Obviously, our law firm and other product liability law firms around the country consider this a promising outcome for future cases.