
C.R. Bard Gets a Taste of Forced Accountability: CA Court Upholds $3.6 M Mesh Verdict
November 19, 2014
#CleanUpYourMesh #Bard #FDA
Christine Scott-Mesh Hero
Mesh victims are first victimized by the medical device makers, then by the FDA and usually for a third time by the medical device maker again-re-victimizing already injured women by continuing to insult and demean them as was the case with Christine Scott in her case against C.R.Bard who sold polypropylene mesh kits to treat women with pelvic organ prolapse, Avaulta. Source: Truth In Medicine
Mrs. Scott was originally awarded $5.5 million by a jury from the CA Court. The jury also found that Christine Scott’s surgeon, a nonparty, was 40 percent at fault and the trial court reduced the award accordingly down to $3.6 million.
I’m not sure what it’s going to take for these doctors to wake up and start suing the companies when they’re sued in cases when they are not provided all the facts. As a former rep (not selling this product) I know we weren’t always given all the facts and if we weren’t surgeons certainly weren’t.
CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Source: Medical Device Expert LLC
Christine Scott’s gynecologist, Dr. Tillaikarasi Kannappan, attended a one day session relating to Avaulta taught by Dr. Susan Tate, a urogynecologist. The session included a power point presentation and a cadaver lab. During the cadaver lab, Dr. Kannappan was shown the proper technique for implanting Avaulta but was not instructed on either removing mesh or diagnosing when mesh should be removed. According to Dr. Kannappan, she was told there could be complications but that they were minimal. Dr. Kannappan recalled being told Avaulta could cause minimal erosion but that the problem could be dealt with as an outpatient procedure in the office by trimming the mesh. Dr. Kannappan’s overall impression was that Avaulta was very safe to use and was a superior product. She was not informed that Avaulta should not be used in sexually active women or for a mild prolapse.
Those are all the buzz words ever other Avaulta attorney representing mesh victims should look for because if that’s consistent messaging from all Avaultra trained surgeons then it means they were coached by the company and there was manipulation of the facts.
Then Bard decided to appeal the decision because a 40% reduction due to “surgeon error” bringing the penalty down to $3.6 million wasn’t enough of a gift for Bard.
(Insult & demean, not recognizing the rights of others, creating hopelessness in victim, quick to place blame, rarely challenged, lack of shame, remorse, guilt or accountability).
Bard argued:
The jury was erroneous as a matter of law, meaning Bard didn’t think the verdict was supported by substantial evidence
Really? A jury of peers clearly felt differently. Do you think Reed Smith, Michael K. Brown, Raymond A. Cardozo, Eric J. Buhr, Kevin G. Lohman and Anne M. Grignon who were defending Bard understand a jury of peers is not made up of a jury of the attorney’s peers, right?)
Bard additionally asserted it was denied a fair trial due to the admission of evidence of postsurgery events, attorney misconduct and juror misconduct.
(I’m not sure if Mrs. Scott has a dog but I’d hazard a guess she doesn’t or else her dog also would have been blamed for misconduct. What? They didn’t get a fair trial because the court system actually forced accountability on Bard?)
Amazing everyone else was at fault according to Bard apparently except for Bard. The amount of victim blaming in this case is embarrassing and needless.
ProTip to Judges: If a company takes a case to Appellate Court as a means to further insult and demean and to continue to create hopelessness in the victim and the court finds in favor of the victim, the award should automatically become doubled. I bet that’d clear out the Appellate Courts quickly and pay the victims in a timely manner.
After Bard lost they called to the court’s attention that jurors were tweeting during the case (nothing like hedging your bets Bard-if they won it would have never been mentioned but since they lost they cried to the courts about jury misconduct).
Fortunately Judge William D. Palmer basically told Bard that no amount of pouting and no matter how skilled they were at the blame game and no matter how stupid a few jurors were:
Juror 14 improperly posted on Twitter during trial showing his disdain for the case. For example, this juror posted “FUCK THE COURT SYSTEM.”
By not bringing these Twitter posts to the trial court’s attention, Bard forfeited this point as a ground for its new trial motion.
And how the fuck do the courts not instruct jurors to not fucking tweet? And how hadn’t the courts monitored this during the case? These poor women-the attorneys want a jury of their peers and the actual jurors were better suited for a season on Big Brother.
And here’s the final thing that makes this case good and precedent setting-negligent design claim was supported by substantial evidence, meaning the device design (part of which is polypropylene) was part of the problem and will help all the women as they move to get polypropylene off the market. Or at least it’s ambiguous enough to be interpreted that way-just like jury really found that the doctors involvement didn’t really cause the harm to Mrs. Scott yet the court refused to reverse the original award back to $5.5 million.
Lana Keeton
The Ha-Ha cartoon made me laugh out loud when I read it this morning! Thanks forthe laugh and the great perspective you bring to the understanding of the psychos running major corporations.
I was so mad a few years back when I read Bill Weldon,then CEO of J&J, had bought two pieces of waterfront property in Palm Beach for $8 million dollars while I was starving to death because of the Gynecare TVT piece of garbage a stupid, sick doctor had implanted in me. Wonder how many horribly injured patients it took for him to have that $8 million dollars to spend on LAND that did not even have a house on it?
What a horrible company Johnson and Johnson is. Really disgusting.
Melayna Lokosky
When I was reading the Appellate Decision (thank you for sharing the link) that’s exactly what I thought of, Nelson from the Simpsons (Ha! Ha!), in his distinctive voice, as it was so fitting for a group of people who tried and worm out of paying an injured victim. There’s solace in knowing that one day even the corporate attorneys will eventually end up victims to the corporations and I don’t think any of us will be too broken up about it.
Johnson & Johnson’s day of forced accountability is coming but sadly they’ll pull the same insulting and demeaning tricks only times 100,000-just keep focusing on your facts Lana as you have and life has a way of taking care of people like Weldon and is illustrious successor Alex Gorsky.
Scherminator
What about their HERNIA mesh, that’s been destroying my life for years, with no legal recourse? Will any lawyers take that battle NOW?
Melayna Lokosky
We will see an increasing “trend” of more men coming forward as mesh was used in a high percentage of those cases. The industry and FDA won’t be able to hide behind medical sexism and dismiss women having the problem when it becomes apparent both genders are suffering at the hands of mesh. Keep fighting to get someone to pay attention.
Dawn
Thank you !
I really enjoyed your perspective on this win. Christine Scott is one amazing woman , she deserved the 5.5 . But I am thrilled she is at least receiving the win . 3.5 will at least , hopefully cover some of her medical costs for her remaining life.
Love and prayers to all MESH SURVIVORS …..
Melayna Lokosky
Dawn-thank you for taking the time to read and comment. I agree Christine Scott is amazing and deserved 3 times that amount for what Bard put her through first by selling a device that caused harm and again by demeaning and insulting her through appeals.
The sad truth is after taxes (if the government wants their cut-they should sue the company but not take from victims) and attorney’s fees (which they earned and deserve) the settlement will help defray some costs, but she’s very young and it’s unlikely this will cover what she’ll need throughout her life.
Yes, these are wins but it’s important for the public and other victims (who are still fighting) to understand the real reality of these settlements and not the company and or government PRSpin to make victims look greedy when PRSPinUnSpun is the companies and government are the greedy ones.
Keep fighting and remember to remind your attorneys if settlement talks come up (which this win may force a companies to consider) they get more if you get more-don’t settle for less than your health was worth.