Judge denies request for new mesh trial

By Kyla Asbury | Mar 10, 2015

CHARLESTON – A federal judge has denied a motion requesting a reduction in punitive damages in a lawsuit against C.R. Bard Inc. for its vaginal mesh products.

Bard had filed a motion for a new trial and a motion to reduce the $1.75 million punitive damages.

In his opinion, District Judge Joseph R. Goodwin said Bard's arguments advanced in support of a new trial are unpersuasive.

"Crucially, none of the objections raised by Bard constitutes an error 'so grievous as to have rendered the trial unfair,'" Goodwin's opinion states.

On the contrary, the evidentiary decisions made during the trial ensured that the jury would hear the most probative evidence from each side without being confused and misled by superfluous and complicated testimony, according to the opinion.

Because of this, Goodwin denied the motion for a new trial and denied Bard's subsequent requests.

The case was the first jury trial within the seven MDLs assigned to Goodwin by the Judicial Panel on Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse and stress urinary incontinence, according to the opinion.

"In the seven MDLs, there are more than 70,000 cases currently pending, approximately 10,000 of which are in the C.R. Bard Inc."

This particular case concerns Donna Cisson, who was implanted with transvaginal surgical mesh—specifically, the Avaulta Plus Posterior Biosynthetic Support System manufactured by Bard to treat pelvic organ prolapse—in May 2009, and after receiving the implant, she experienced "significant mental and physical pain and suffering."

On March 10, 2011, Cisson and her husband filed the lawsuit against Bard for various causes of action and trial began July 29, 2013.

The trial lasted 14 days and, on Aug. 15, 2013, the jury returned a verdict in favor of Cisson on her design defect and failure to warn claims.

The jury awarded Cisson $250,000 in compensatory damages and $1.75 million in punitive damages.

Goodwin stated that after the trial, he considered and denied Bard's renewed motion for judgment as a matter of law, finding that the plaintiffs’ claims had sufficient evidentiary basis such that the jury’s verdict was reasonable under Federal Rule of Civil Procedure 50.

"In a final attempt to absolve itself of the jury’s verdict, Bard has moved for a new trial pursuant to Federal Rule of Civil Procedure 59(a)(1)," according to Goodwin's opinion.

Anxious to submit its case to the Fourth Circuit Court of Appeals, Bard recently requested a ruling on this motion, which Goodwin denied.

Goodwin stated that Bard attempted to minimize Cisson’s physical injuries, calling them "non-life threatening," but the court cited trial facts of Cisson's "life-altering" pain that is "permanent in nature" as evidence of Bard’s reprehensible conduct.

Goodwin also stated that Bard's continuous indifference and reckless disregard of the harms caused to the plaintiff — by the use of the polypropylene resin in its device even after they were warned to avoid use in human bodies — as conduct that warranted the $1.75 million punitive damage award against it.

Goodwin also denied the plaintiff's motion that would declare Georgia's Tort Reform Act of 1987 unconstitutional.

According to the law, 75 percent of punitive damages must be paid to Georgia's state treasury specifically for recoveries in product liability cases.

Cission and her husband were represented by Gary B. Blasingame, Henry G. Garrard III, Andrew Judson Hill III, Leanna Bankester Pittard and Josh B. Wages of Blasingame Burch Garrard & Ashley; Paul T. Farrell Jr. of Greene Ketchum Bailey Walker Farrell & Tweel; Allison Overbay Van Laningham of Van Laningham Duncan; and Anthony J. Majestro of Powell & Majestro.

C.R. Bard is represented by Melissa Foster Bird, Taylor Tapley Daly, Matthew B. Lerner, Richard B. North Jr., Amanda Naes Shelton, Anita Wallace Thomas, Marc E. Williams and Jane T. Davis of Nelson Mullins Riley & Scarborough; Lori G. Cohen, Ronald Merrell II, Michael A. Nicodema, Daniel I.A. Smulian, Eric W. Swanis and Philip M. Hymanson of Greenberg Traurig; Marilyn Ann Moberg of Reed Smith; and Deborah A. Moeller of Shook Hardy Bacon.

U.S. District Court for the Southern District of West Virginia case number: 2:11-cv-00195

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