Mass tort lawyers grow confident after vaginal mesh verdict

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After the first case involving a vaginal mesh product to go to trial ended in a $5.5 million verdict for a California woman, plaintiffs’ attorneys are optimistic about the ongoing litigation against four manufacturers of similar products.

The case was not a true bellwether in that it was not part of the ongoing multidistrict litigation. Still, plaintiffs’ lawyers say the case had common issues with other mesh cases and is a predictor of things to come.

“Frankly, any time you can get a victory in any one of these cases, it’s good news for the whole litigation,” said Jeffrey Grand, an attorney at Bernstein Liebhard in New York.

The verdict was surprising not only because of the amount of the award but because the winning attorney was handling only the single case and is not involved in the MDL.

“There was a lot of buzz about this verdict. The size is extremely impressive,” said Calvin Warriner, an attorney at Searcy, Denny, Scarola, Barnhart & Shipley in West Palm Beach, Fla.

There are about 1,100 cases in multidistrict litigation in West Virginia against four manufacturers of vaginal mesh products: C.R. Bard, Boston Scientific, Johnson & Johnson subsidiary Ethicon and American Medical Systems.

There are additional consolidated state court actions accounting for hundreds more in various states. The total number of cases thus far is about 3,400, according to Henry Garrard III, an attorney at Blasingame, Burch, Garrard, Ashley in Athens, Ga.

‘Could go higher’

Christine Scott, a 52-year-old avid runner, had two Avaulta Plus mesh devices implanted to treat urinary incontinence.

The mesh punctured her colon and other tissue that grew around the mesh, and despite eight surgeries and nine other procedures, the devices cannot be removed. She is incontinent, experiences chronic pain and cannot have sex.

She and her husband sued the manufacturer C.R. Bard and the doctor who implanted the mesh in state court in California.

Plaintiffs’ lawyers who have filed similar suits say the assorted mesh products are not suitable for the pelvic area.

The theme of the trial, according to lawyers who followed it, was that C.R. Bard tested its device only on rabbits before introducing it into the market for women.

Gene Lorenz, the winning attorney, was not available for comment despite numerous attempts to reach him.

“He put on a simple case without a whole lot of frills. It’s the only [mesh] case he’s done,” Garrard said. “Did he bring in all kinds of experts he could have? No, [but] he utilized a lot of documents. There are some documents he didn’t use that I would have used, but I don’t want to take anything away from him; he got a good result.”

Some attorneys involved in the mass tort predicted the verdicts could go even higher.

“If the right attorney gets the right case, it wouldn’t surprise me at all to get a $20 million verdict,” Warriner said.

Fidelma Fitzpatrick, an attorney at Motley Rice in Providence, agreed, calling the implant procedure “brutal” and describing some mesh products as a preformed kit of devices including “meat hooks that are introduced into the entire pelvic tunnel.”

“If this isn’t a wake-up call [to defendants], I don’t know what will be. I think verdicts could definitely go higher. These are some of the most severe and permanent injuries you are going to see in medical device cases,” Fitzpatrick said.

But the company suggested the trial was unique.

“Due to the many irregularities of this trial, we do not believe this verdict is representative of the other women’s health product cases pending against Bard,” said Bard spokesperson Scott Lowry in an emailed statement.

He also noted that the jury found the doctor 40 percent at fault, thus reducing the damage award against Bard.

Withdrawal from market

A month before the trial, Johnson & Johnson, which is also embroiled in similar lawsuits, withdrew its vaginal mesh products from the market.

Plaintiffs’ attorneys pounced on that news, saying they will try to admit that evidence in cases against the company.

Grand said that while he expects the defense to argue that the withdrawal from the market was the type of subsequent remedial measure that many jurisdictions do not allow into evidence, he plans to argue that the company withdrew the products for non-safety reasons.

“Ethicon has publicly stated that it was a business decision. In my view, it’s not a subsequent remedial measure if they say safety concerns were not the reason to take it off the market,” he said. “It’ll be an interesting debate.”