The National Trial Lawyers
  • Home
    • Meet Our Team
    • Contact Us
    • Mission & Goals
    • FAQ
  • Webinars
  • News
  • Membership Directory
    • Top 100 Map – Civil Plaintiff
    • Top 100 Map – Criminal Defense
    • Top 40 Under 40 Map – Civil Plaintiff
    • Top 40 Under 40 Map – Criminal Defense
  • Top 100
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Benefits
    • About
    • Top 100 President’s Message
    • Diplomat
    • Membership Renewal
    • Member Profile Updates
    • Top 100 Badge
    • Media
  • Top 40
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Top 40 Under 40 Trial Academy Bootcamp
    • Benefits
    • About
    • Top 40 President’s Message
    • Membership Renewal
    • Member Profile Updates
    • Top 40 Badge
    • Media
  • Specialty Assoc
    • About
    • Shop
    • Officers
    • Membership Renewal
    • Member Profile Updates
    • Media
  • Nominate
    • Top 100
    • Top 40
    • Specialty Association
    • Trial Lawyer Hall of Fame
    • Trial Lawyer of the Year
    • Trial Team of the Year
    • America’s Most Influential Trial Lawyer
    • America’s Most Influential Law Firm
    • Lifetime Achievement Award
  • Shop
  • Magazine
    • A-List
  • Education and Networking Agenda
    • Trial Lawyers Summit
      • Summit Sponsors
    • Top 40 Under 40 Trial Academy Boot Camp
    • Mass Torts Made Perfect
    • The Lanier Master Class 5.0 Trial Academy 2021
    • Webinars
  • Hall of Fame
    • Trial Lawyer Hall of Fame

$1.75 Million Punitive Award Stands for Transvaginal Mesh Injury

Posted on February 17, 2015 by Larry Bodine
Mesh manufacturer knowingly continued use of resin dangerous to human bodies.

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.

Posted in Blog, Consumer Protection, Medical Malpractice

Comments are closed.

Recent Posts

Toyota Will Pay $180M to Settle Violations of the Clean-Air Act

Toyota Will Pay $180M to Settle Violations of the Clean-Air Act

January 15th, 2021

The U.S. Department of Justice and U.S. Environmental Protection Agency (EPA) announced today that the United States has[Read More...]
Boeing's Insitu Will Pay $25M to Settle a Whistleblower Complaint About Used Drone Parts

Boeing's Insitu Will Pay $25M to Settle a Whistleblower Complaint About Used Drone Parts

January 13th, 2021

Bingen, Wash.-based Insitu, a Boeing subsidiary, has agreed to pay $25 million to settle allegations that it used recycl[Read More...]
Deutsche Bank Agrees to Settle Criminal and Civil Charges for $130M

Deutsche Bank Agrees to Settle Criminal and Civil Charges for $130M

January 11th, 2021

DEUTSCHE Bank AG agreed to pay US$130 million to settle criminal and civil charges that it bribed foreign officials and manip[Read More...]
Boeing Pays $2.5B to Settle Charges Tied to the 737 MAX Crashes

Boeing Pays $2.5B to Settle Charges Tied to the 737 MAX Crashes

January 8th, 2021

Boeing has agreed to pay just over $2.5 billion to resolve a federal charge of “criminal misconduct” for how its [Read More...]
Texas Attorney General Seeks $43M in Google Antitrust Lawsuit

Texas Attorney General Seeks $43M in Google Antitrust Lawsuit

January 6th, 2021

The mass exodus of Texas Attorney General Ken Paxton's top staff over accusations of bribery against their former boss has le[Read More...]

Contact Us | Terms of Use | Privacy Policy

Attorney information and content provided on this website is provided for the benefit of members of The National Trial Lawyers and as a public service by Legal Associations Management, Inc. The website and all data are the property of Legal Associations Management, Inc. Data, including without limitation attorney information and content, on the site may not be mined, sold, or used commercially for any purpose without the explicit written consent of Legal Associations Management, Inc. This site may not be accessed by any automated program for extracting data for any use. By accessing and using the site you agree that you will not develop, support or use software, devices, scripts, robots, or any other means or processes (including crawlers, browser plug-ins and add-ons, or any other technology) to scrape data or otherwise copy profiles and other data. Unauthorized use or attempted unauthorized use of this system may subject you to both civil and criminal penalties.