LOWELL, Mass. — (Mealey’s) A Massachusetts state court jury on Aug. 29 returned a defense verdict for Boston Scientific Corp. after 2-1/2 days of deliberations in the state’s second bellwether pelvic mesh trial (Maria Cardenas v. Boston Scientific Corp., No. MICV2012-02912, Mass. Super., Middlesex Co.).
(Watch a video excerpt of plaintiff attorney Douglas Monsour’s closing argument. Watch a video excerpt of defense attorney Susan Murphy’s closing argument.)
The 14-member jury in the Middlesex County Superior Court was asked if the Obtryx transvaginal mesh device made by Boston Scientific was defective in design, whether the device was defective by reason of lack of adequate warning and if Boston Scientific was negligent in designing the device or in providing adequate warnings. The jury responded “no” to each question.
Plaintiff and defense counsel presented closing arguments on Aug. 26. The jury began deliberations the next morning.
On Aug. 28, the jury submitted two questions to Judge Diane Kottmyer. The jury asked the judge the meaning of two terms: “detrusor instability” and “dehiscence of vaginal incision.” The judge told the jury that she is not permitted to answer that question because it concerns the facts of the case and that they must determine the facts based on evidence admitted at trial.
In response to the jurors’ question whether they could end deliberations on Fri., Aug. 29, at 1 p.m. and resume deliberations on Tuesday after the Labor Day holiday, the judge said they could.
In 2008, Maria Cardenas had an Obtryx pelvic mesh device implanted in her pelvis to treat stress urinary incontinence. Cardenas eventually began complaining of pain, and in 2011, her gynecologist performed a hysterectomy.
During that procedure, it was discovered that the Obtryx mesh had cut through her urethra. The doctor who implanted the device surgically removed most of the mesh and surgically repaired Cardenas’ urethra. That repair surgery had to be repeated months later.
Cardenas sued manufacturer Boston Scientific, alleging that the device was unreasonably dangerous and that the defendant negligently failed to warn the doctor and Cardenas of the risk of the mesh shrinking and injuring internal organs.
Design, Duty To Warn
Counsel for Cardenas told jurors that internal Boston Scientific documents showed that there was 20 percent shrinkage of the polypropylene mesh used in the device. Cardenas’ explanted mesh was entered into evidence.
Plaintiff’s counsel also argued that the manufacturer of the polypropylene warned buyers that the material can oxidize and become brittle. They said that when Boston Scientific filed a patent application for a successor pelvic mesh device, it said the new product did not shrink as much as old products.
Counsel for Cardenas also noted that one of Boston Scientific’s experts testified that he doesn’t use Obtryx although he is a paid consultant for Boston Scientific. They also said a rabbit study submitted by Boston Scientific lasted only 12 weeks and didn’t include all the rabbits it started with.
Boston Scientific argued that the implanting doctor, Lane Childs, M.D., testified that he read the instructions for use for Obtryx and felt it was safe and effective. The company’s counsel argued that Childs was the customer to whom Boston Scientific owed a duty to warn.
Defense counsel said Boston Scientific had clinical data on polypropylene from other devices and said none showed that the material degraded inside the body.
Experts included Stephen Badylak, M.D., Patrick Culligan, M.D., and Stephen Spigelberg, Ph.D.
Cardenas is the second Massachusetts pelvic mesh bellwether trial. On July 29, the first trial in Albright v. Boston Scientific Corp. (No. 12-0909, Middlesex Co. Super.) ended in a defense verdict.
Pelvic slings use surgical mesh to surgically treat pelvic organ prolapse and stress urinary incontinence.
Cardenas is represented by Monsour of the Monsour Law Firm in Longview, Texas, and Joseph Osborn of Babbitt, Johnson, Osborn & Le Clianche in West Palm Beach, Fla.
Boston Scientific is represented by Matthew Keenan and Eric Anielak of Shook, Hardy & Bacon in Kansas City, Mo., and Murphy of Murphy & Riley in Boston.
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