CHARLESTON, W. VA. — (Mealey’s) A West Virginia federal jury on Aug. 15 awarded $2 million in compensatory and punitive damages in the first multidistrict litigation bellwether trial involving a pelvic mesh device made by C.R. Bard Inc. (Donna Cisson, et al. v. C.R. Bard, Inc., No. 2:11-195, S.D. W. Va.).
(Verdict form available. Document #28-130822-014V. Punitive verdict form available. Document #28-130822-015V.)
The jury in the U.S. District Court for the Southern District of West Virginia found that plaintiff Donna Cisson had proved that the Avaulta Plus Posterior BioSynthetic Support System made by Bard was defectively designed and that Bard failed to warn doctors about the device’s risks. The jury also found that Bard had not proven its assumption-of-risk defense.
In the first of two verdict forms, the jury awarded Cisson $250,000 in compensatory damages. However, it found that Cisson’s husband, Dan, had not proven his claim for loss of consortium.
Unanimous Punitives Finding
The jury also found that Cisson proved by clear and convincing evidence that Bard acted with willful misconduct, malice, fraud, wantonness, oppression or “that entire want of care that would raise the presumption of conscious indifference to consequences such as this is an appropriate case for an award of punitive damages.” In the second verdict form, the jury unanimously found by the preponderance of evidence that a punitive damage award of $1.75 million was appropriate.
Cisson originally sued Bard in the U.S. District Court for the Northern District of Georgia. Her case was transferred to the Southern District of West Virginia where the Bard pelvic mesh MDL is centralized.
Cisson says she was implanted with an Avaulta pelvic mesh device to treat her pelvic organ prolapse. She alleges that the device caused her permanent injuries that required corrective surgery.
Pelvic mesh devices, also known as transobturator devices, pelvic slings or vaginal slings, are pieces of surgical mesh implanted in the pelvic areas of women to treat stress urinary incontinence or pelvic organ prolapse. Plaintiffs allege that the mesh erodes pelvic tissue and organs, causing pain, bleeding and infections and requiring surgical removal that is not always successful.
Mistrial 1st Time Around
Cisson’s case was chosen as the first Bard bellwether trial. It ended in a mistrial July 10 after a witness mentioned that the device had been recalled. The court had previously excluded evidence of the Avaulta recall.
Judge Joseph R. Goodwin quickly set a new trial date for July 29, and the second jury began deliberating on Aug. 14.
Three other bellwether cases are lined up to follow the trial of Donna Cisson’s case.
7 Pelvic Mesh MDLs
Judge Goodwin presides over six pelvic mesh multidistrict litigations, including the one for Bard. One defendant, Endo Health Solutions Inc., announced in June that it will pay $53 million to settle an unspecified number of lawsuits involving a pelvic mesh device made by subsidiary American Medical Systems.
In addition, there is an MDL in the U.S. District Court for the Middle District of Georgia alleging similar injuries from devices made by Mentor Corp.
Cisson is represented by Henry G. Garrard III, Gary B. Blasingame, Andrew J. Hill III, Josh B. Wages, Leanna B. Pittard and Adam B. Land of Blasingame, Burch, Garrard & Ashley in Athens, Ga., Paul T. Farrell Jr. of Greene, Ketchum, Bailey, Walker, Farrell & Twell in Huntington, W. Va., and Allison Van Laningham of Van Laningham Duncan in Greensboro, N.C.
Bard is represented by Lori G. Cohen and Ronald Merrell II and of Greenberg Traurig in Atlanta; Eric W. Swanis and Philip M. Hymanson of Greenberg Traurig in Las Vegas; Michael A. Nocodema of Greenberg Traurig in Florham Park, N.J.; Amanda Naes Shelton, Anita Wallace Thomas, Matthew B. Lerner, Taylor Tapley Daly and Richard B. North Jr. of Nelson, Mullins, Riley & Scarborough in Atlanta; Jane T. Davis of Nelson Mullins in Charleston, S.C.; Marc E. Williams and Melissa Foster Bird of Nelson Mullins in Huntington, W.Va.; Deborah A. Moeller of Shook, Hardy & Bacon in Kansas City, Mo.; and Marilyn Ann Moberg of Reed Smith in Los Angeles.
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