$1.75 Million Punitive Award Stands for Transvaginal Mesh Injury Posted on February 17, 2015 by Larry Bodine Mesh manufacturer continued use of harmful resin after their supplier refused to sell the harmful substance. A federal judge denied a motion by medical manufacturer C.R. Bard Inc., requesting a reduction a $1.75 million punitive damage jury award. Evidence proved that Bard knew its mesh product was harmful. Judge Joseph R. Goodwin in West Virginia also denied the plaintiff’s motion asking the court to declare the Georgia’s tort reform law unconstitutional — it requires 75 percent of any punitive damage award in a product liability case to be paid to the treasury of the state. Manufacturer ignored known dangers Bard is the manufacturer the Avaulta Plus transvaginal surgical mesh used to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI), according to court documents. A polypropylene resin was used to make the Avaulta Plus vaginal mesh. According to court documents, Bard was aware of the dangers of the resin after the Phillips company, makers of the polypropylene resin, warned against using it in permanent implantation devices. Phillips warned that any contact with the human body or internal body fluids or tissues would increase risk of erosion, infection, scar tissue formation, and a “tendency to unravel, creating sharp ‘fishing line’ effect” — “arms” that could slice through tissue. Even though Phillips declined to sell the resin to Bard for use in its devices, Bard surreptitiously purchased the harmful resin from third parties to conceal its use because it did not “want Phillips to know that [they] are using [the resin] for a medical device,” as stated in Bard company emails. The email further stated that Bard avoided contacting the resin supplier directly, because the supplier refused to supply it to Bard after the supplier received the same usage warnings that Bard received. Bard continued to ignore recommendations by physicians and researchers to conduct pre-market human trials and further declined to perform new tests on its product. Bard also disregarded adverse results of the tests it did perform including not informing physicians about the results, according to the court opinion. First case of 70,000 injured plaintiffs The plaintiff, Donna Cisson, filed the bellwether case tried to a jury out of the seven MDLs with more than 70,000 cases pending, 10,000 of which are against Bard, according to the court opinion. Cisson was implanted with the Avaulta Plus mesh to treat her POP in May 2009. Afterwards, she experienced significant pain and “extrusion, erosion, excessive scarring, and inflammation as a result of the implant.” She had the Avaulta Plus removed in 2011, however the “arms” were unable to be removed and remain inside of Cisson, causing continued pelvic pain. The jury awarded her $250,000 in compensatory damages and $1.75 million in punitive damages, 75 percent of which, according to Georgia’s Tort Reform Act of 1987, must be paid to the state treasury. Reckless disregard by Bard Bard, who previously filed a Renewed Motion for Judgment as a Matter of Law which was denied, asked for a remittitur through the mechanism of a Rule 59 motion for a new trial, claiming the seven-to-one ratio for punitive damages to the compensatory damages was constitutionally excessive and should be calculated at a one-to-one ratio. Judge Goodwin denied Bard’s motion, assessing the reprehensibility of their conduct as critical to the amount of punitive damages awarded. 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. The judge also pointed to 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. Punitive Damages still owed to state While the judge allowed the punitive damage verdict to stand, 75 percent of it must be paid to the State of Georgia pursuant to their Tort Reform Act of 1987 specifically for recoveries in products liability cases. Cisson’s motion, which the judge denied, asked the court to declare the statute unconstitutional because: It violates the Equal Protection Clause for distinguishing products liability plaintiff as a class separate than other tort plaintiffs It violates the Takings Clause for the unconstitutional taking of her property – the punitive damage award. The Georgia statute, Code. Ann. §51-12-5.1(e)(2), under Georgia’s Tort Reform Act, was held constitutional by the judge who stated its purpose is to “punish[]…a defendant who has the potential to greatly damage a society at large” and deter defendants from the same behavior by requiring three-quarters of the damages to be paid “for the benefit of all Georgia citizens.” Goodwin further held that a plaintiff does not have a vested property right to the amount of punitive damages, because they are imposed for the purpose of “punishing unlawful conduct and deterring its repetition.” Cisson was also awarded $250,000 in compensatory damages by a jury who ruled for Cisson in her claims against Bard for design defect and failure to warn. Cisson’s husband’s claim for loss of consortium was dismissed. C.R. Bard is represented by Lori G. Cohen of Greenberg Traurig, LLP Donna Cisson is represented by Gary B. Blasingame and National Trial Lawyers Henry G. Garrard III, James B. Matthews III, Andrew J. Hill III, and Josh B. Wages of Blasingame, Burch, Garrard & Ashley, P.C. The case is Cisson et al v. C.R. Bard, Inc., case number 2:11-cv-00195, in the U.S. District Court for the Southern District of West Virginia.
