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$1.2 Million Batiste Pelvic Mesh Case Overturned by Texas Appellate Court

Linda Batiste

Linda Batiste

MND, Nov. 6, 2015 ~ The brief story was reported Friday in the Dallas News  – the $1.2 million verdict against Johnson & Johnson and in favor of mesh-injured Linda Batiste has been overturned by a three-judge Texas appellate court.  The decision was published Thursday from the Fifth District Court of Appeals in Dallas.

The Batiste case was the first mesh case to go to trial in Texas.  The jury decided Johnson & Johnson’s (J&J) TVT-Obturator (TVT-O), made by Ethicon, a division of J&J, was defective in its design and awarded Ms. Batiste $1.2 million.

Ms. Batiste, 65, died of cancer in August.

In her four-week trial in April of last year, she alleged the TVT-O caused her severe pelvic and vaginal pain, even years after it was implanted in January 2011.

Aaron Horton and Linda Batiste

Aaron Horton and Linda Batiste at trial

“It actually does feel like a scouring pad in your  body. You can feel in your women parts, what it is. It’s there,” she told WFAA-TV in an 2014 interview (here).

The TVT-O remains on the market and is used as a treatment to stop incontinence in women who leak urine during daily activities.

WHAT THE APPELLATE COURT SAID

During the trial, lawyers for Ms. Batiste showed the jury the Prolene mesh, also used for hernia repair, was considered a heavyweight mesh, too heavy for the pelvic region. It was mechanically cut with a small-pore that encouraged infection.  The mesh would erode and degrade, the jury was told.

While the three-judge panel agreed the device can cause complications, such as erosion and pain, and agreed Ms. Batiste suffered from those conditions, it wrote:

“Rather, to recover on her product liability claim based on an alleged design defect in the TVT-O, Batiste was required to prove a specific defect in the TVT-O, and not simply the device itself, was the producing cause of her injuries.”

In other words, the Plaintiff must introduce evidence of causation, which clearly Plaintiffs’ attorneys felt that exactly was what they spent weeks presenting as acknowledged further in the decision:

Justice Robert Fillmore, Fifth Court of Appeals, Texas

Justice Robert Fillmore, Fifth Court of Appeals, Texas

“Although Batiste alleged the TVT-O was defective based on its use of mechanically cut, heavyweight, small-pore mesh that was subject to degradation and particle loss, she failed to produce more than a scintilla of evidence that any of these alleged defects caused her injuries. Accordingly, the evidence is legally insufficient to support the jury’s verdict.”

With that, the panel reversed the trial court’s judgment.

The Opinion is written by Justice Robert M. Fillmore, who was joined by Justices Lang and Whitehill.

A check of the Fifth Appellate District website shows Judge Fillmore was appointed by Gov. Rick Perry in 2009. Before that he worked for a Dallas law firm representing the corporate world in energy, utilities and antitrust litigation.  Justices Lang and Whitehill worked for a Dallas firm that specializes in the aviation, chemical and energy industries, commercial litigation and white-collar defense.

TAKE NOTHING 

Their decision specifically says they “render judgment that Batiste take nothing on her product liability claim against appellants based on a design defect in the TVT-O.”

The appellate judges had the option to remand the Batiste case back to court to be retried or to reduce the jury award.

There is no word this evening on whether Ms. Batiste’s attorneys plan any further appeals.

Ms. Batiste is represented by the law firms Freese & Goss, Capshaw & Assoc. , Matthews Law firm, Wagstaff, Cartmell and Edwards de la Cerda.  The case is Johnson & Johnson et al. v. Batiste, case number 05-14-00864-CV, in the Texas Court of Appeals for the Fifth District.

 

ARGUMENTS

The appellate justices noted that Ms. Batiste suffered from a number of medical conditions.  Although they acknowledged her pain, they said specifically the witness, Dr. Tom Margolis failed to address a number of potential causes of Batiste’s symptoms:

such as diabetic neuropathy, which could be a source of her pelvic pain, and the possibility she suffers from interstitial cystitis, which could explain her pelvic and groin pain……Margolis failed to rule out the passage or the placement of the sling, as opposed to any defect in the sling, as being the cause of Batiste’s groin or pelvic pain.”

In its backup position of requesting a new trial,  J&J said that the trial judge erred by excluding all evidence referencing the FDA including clearance of a medical device and any position statements by medical societies and by admitting evidence of other lawsuits of a similar nature.

Johnson & Johnson recently received its first  favorable jury ruling in the October Dallas trial of Cavness v. Ethicon.  Prior to that verdict, and the Batiste case, other product liability actions against J&J over its pelvic mesh include Jo Huskey ($3.57 million), Linda Gross ($11.1 million) and Coleen Perry ($5.7 million).

J&J has recently settled a number of other mesh cases before they went to the jury (Budke) or trial (Wicker) as well as a few cases in Missouri.

So far, two juries have found the TVT-O was defective in its design.

Ethicon, a division of J&J, is facing 44,400 personal product liability cases over its transvaginal mesh, according to an October SEC report.  #

LEARN MORE: 

Bastiste  MEMORANDUM OPINION, Nov. 5, 2015Court of Appeals Fifth District of Texas, Dallas  

MND, J&J Tries to Overturn Batiste Verdict, September 2015 

http://meshmedicaldevicenewsdesk.com/jj-wants-texas-appellate-court-to-overturn-batistes-1-2-million-verdict

Batiste Trials Ends With Defective Product Verdict, April 3, 2014

http://meshmedicaldevicenewsdesk.com/batiste-trial-ends-with-defective-tvt-o-pelvic-mesh-jury-award-1-2-million

MND, August 14, 2015 ~ Linda Batiste to be Laid to Rest

http://meshmedicaldevicenewsdesk.com/mesh-trial-pioneer-linda-batiste-to-be-laid-to-rest

 

74 Comments

  1. Billie Aschmeller says:

    This disgust me! Her family gets nothing? I have j&j tvto and this really scares me. Oh God…help us defeat the Goliath J & J!!!

    • Bejah Blue says:

      Regardless of all the logical arguments to the contrary, this remains an example of what is at its core absolute evil. I am no evangelist, nor am I a religious extremist by any stretch of the imagination and there are many, if not most, Sundays when I do not go to church for a variety of reasons but I tell you that evil is real and what has historically been called by Satan or the Devil or/and many other names, it is a force in the Universe just as GOD is. It may also be, as GOD is, within us all as well as in the outer world. We imagine these entities as having relatively human form. We do that so that we can understand them without the difficulty that abstraction that often confuses us. We have been told that the world will become consumed by evil and you may not be able to believe this but that does mean it is not the truth. Keep evil out of your lives, out of your own heart as well as you can. It is said that GODs “light” will protect you from it to some degree. Look at all that is happening in the world. There is a force that is rising and manifest in organizations like “ISIS” that seeks not so much high value targets but rather aims at the heart of the people, seeks to destroy western civilization. We all know there will be more attacks and live in fear of the day another attack occurs in America. Paris…the city of light, France arguably one of the most beautiful nations on earth is now so ravaged it will never be the same. Somehow this is worse than WWII because it is insidious and invisible and perpetual. The force underlying all of this is the same force that controls these corporations that ravage our bodies, our environment, and indeed the planet. We can stand against them but we may not be able to ultimately defeat them if what is said in the Bible is coming to fruition. What we can do it stand against them without faltering, believe that evil exists (Remembering it has been long said that evil is strengthened in all its manifestations, and at its core, when we do not believe it exists), and live our own lives in a way that is honorable, and compassionate and courageous. I too grieve for this family and for all of us. To do what “they” have done to us and then to take away access to pain medication further exemplifies this truth.

      On a personal note I have been absent because I have been fighting a prsonal battle on the pain medication front. I had dismissed my “pain mgt. doctor” for cause. I had told his staff person I would be filing a report with the state (CA) medical board. Since then I have been referred to two other pain management doctors. Both refused to see me and gave me no explanation, one even hung up on me. I now fear I have been blacklisted. I am terrified that I will not be able to find a pain management doctor here. I have developed some questions that I will try to find answers to. If anyone here has information about this issue that may help enlighten me (us all) please comment.

      1. It turns out that the pain mgt. doctor I was seeing is a Physiologist which he did not exactly advertise. I thought he was an anesthesiologist but he is not. Never assume. A physiologist may not even be an MD. I am still not sure if this individual is. I am going to try to voice the opinion at the state level that such medical professionals be required to make it very clear to patients what exactly their training focus is.

      2. Does one have to go to a “Pain mgt. doctor” to get perscriptions for controlled substances? We used to get such medications from our own physicians who understood very well what our need was. Why did this change, if it did and when?

      3. Do these “Pain mgt. physicians” report directly to the DEA and do they receive training from that policing entity?

      4. Can these doctors refuse to provide needed pain medication and a continuity of care?

      5. Can they get away with blacklisting patients? What is our recourse if that is the case?

      6. I believe that I may be the victim of what amounts to medical malpractice. If this pain mgt. health professional is causing me to be blacklisted, and if he is engaging in defamation of character what are my options?

      7. Can I ask my primary care doctor for pain medication? I see in early December. I have enough pain medication for two more weeks and I have a script for Tramadol which I will fill Dec 1st.

      8. My pharmacist knows all about my situation. He has recommended a pain management doctor and I will call that person on Monday.

      When I called the two pain management doctors recommended to me by a doctor I trust I want you to know I had never spoken to them before, both were women, administrative staff I expect, and both interrogated me, were very cold and conducted themselves as if they were police and I was a drug seeking street person and both were very rude from the first moment.

      If any of you have reason to change pain management doctors be very, very careful how you go about it. These people can, IMHO, be very dangerous and conduct themselves in a way that betrays the heart of the oath they pledged to as physicians, and indeed what it means to be a physician. If you want to change doctors do so very carefully. I would also advise making sure you are treated by an anesthesiologist, and NOT a “Physiologist” but I admit that is my own bias.

      I must go outside now into the sun where it is warm…the house is so cold in the fall/winter here. Take care all.

      Be brave and steadfast.

      Bejah

      • kitty says:

        Good your back Bejah. I can’t begin to tell anyone the pain in spinal. U take care too and stay strong too. Thank u Jane this is a life line

        • kitty says:

          BEJAH. I read some recent articles that they are drug testing in California. My advice would to steer clear of pain management Doctors. There is no reason that your primary cannot give you Prescription for opoid– you just have to pick them up every month.

          • kitty says:

            Bejah. Also read recent articles that Medicare is reimbursing Drs’ who prescribe opioids less money for services Need good coordination of care between Drs. Isn’t interesting how all these commercials for pain management groups are.popping up all over?

  2. Disgusted says:

    I’m sick to my stomach. Technicalities that continue to allow us to be hurt daily and the maiming goes on. Is there no common sense left? There are so many of us hurt, living in pain, our lives stolen and yet on and on it goes. I just don’t have the words . . .

  3. Aaron says:

    Noooooooooo!!!! This is so many kinds of wrong; I cannot even enumerate them!

  4. Greg Vign says:

    I would say 98 percent of women diagnosed with IC have pudendal neuralgia instead. I have let my opinions out to the big law firms about the current status of proving specific causation. Not surprising, but still devastating.

    • Bejah Blue says:

      Thank you for this post Dr. In the weeks and months post implant I knew something was very wrong and spent many hours researching as best I could, given the limited access to data and during this time I sent emails to the implanting surgeon who never responded after I began expressing concerns about after effects of the surgery to implant Prolift in my body. In one of these emails I told her I felt I had identified what was wrong with me, at least in part. I told her of my self diagnoses of Intersistial Cystitis. Much later, three years or so, when I finally requested a copy of my file from UCLA I was incensed to see that she had noted that her diagnosis was IC! I had been back only once post implant due to transport issues. No diagnosis of any kind was ever mentioned post implant. The point is that so many of us are on our own when it comes to trying to understand our bodies reactions to this material. I will now explore your proposal of Pudental Neuralgia and see where that leads me. I know all of us are so deeply thankful for your contributions. Many of us are left with no physician caring for us, and many others are in the care of those who really have no expertise, and some who do not even seem interested in learning more about this. In view of this how can I possibly express my gratitude for your efforts and understanding of the issues I and all of us face. It truly is a living nightmare making your presence and commentary all the more meaningful..

      Bejah

  5. Dakeys says:

    These judges are payed by all these corporations. I hope her attorneys file a appeal for this wrong . I’ve never witnessed so much hatred for women in my life. Those judges can use a bit of polypropylene inside their own private area to see just how wonderful there money sit on their behaves. Bunch of low life nasty money laundering butchering thieves.

    • Barb says:

      Dakeys this is the same attorney firm that just lost the recent case with JNJ!! Either their clients cases were not properly worked up, or these lawyer’s certainly were not prepared! Alot of this I believe is what the plantiff’s attorney’s are allowed to bring into evidence! Why after what these manufacturer’s have already destroyed why do they still have the upper hand?? I thought that they were allowed to bring in exibits for the Judges to approve?? JNJ will never settle out and with all the nastyness they have already done that we are aware off it seems like everyone’s afraid of them!!!

      • Jane Akre says:

        Yes the same firm that won $75 million for another woman…. JNJ will settle some day. This is their MO… they like to bluster until the day they settle. Its happened in the past with all of their dangerous and defective products. What a horrible legacy for a company.

      • Bejah Blue says:

        Barb, Thanks for pointing this out about the law firm in this case. It illustrates why we need to be very careful about what law firm, what attorney we select to represent us. Not all are competent, not all bother to even prepare as they should, some may be paid off by defendants representatives and some are simply desperate for business and hope for 15 minutes of fame.

        We deserve good representation and with defendants like JnJ, for example, we are going to need the best attorneys we can get to take our cases. This seems impossible given that most of us are not independently wealthy.

        I would divorce an attorney who I could charge with incompetence, demanding that there be no charges for representation to date and demanding compensation for the damage done to my case. Can we do this? I do not know.

        Women in our position should not feel that they are lucky to get anyone to take their case…women often feel this way….we have value and our cases have value, some more than others when viewing it through the filter of the law but please demand of your representatives what you deserve and unless you have already committed to do so, do not sign a contract that gives them 40% of gross or net, in fact give them no more than 30% if you can…be a savvy negotiator. Do your homework first. I am assuming that there are still women coming into this who have been recently implanted. I would tell them to read first and talk later when it comes to seeking legal representation. Get three written proposals and then sit and review them with intelligent advisors before making a decision about which firm to sign on with.

        We would be wise to also remember that a bad attorney, and a lost case hurts us all. Having said that it is also important for us to not become despondent…and instead remember that we are not going to win every case, we will lose some for a variety of reasons. Unfortunately this kind of legal matter draws individuals looking for free money, liars who misrepresent themselves and we all need to call these individuals out because this too has the potential to reflect poorly on us.

        I am also sensing something that someone else has touched upon here. I feel a palpable sense of misogyny, a hatred of women….or at the very least a frightening discrimination. People seem to have a great capacity to hate, reject and/or dismiss that which they either are afraid of or do not understand. In such situations they often blame the victim. I believe all of this is going on here. How can we address it? How should we handle it? This is difficult because it is a broad cultural bias hiding in plain sight. Why, for example are women still paid less for the same work men do???? Why do we tolerate this as women, as citizens of this country? I think that recent stats have indicated that women are dramatically outnumbering men as heads of households, and we care for our children, we care for our grown children, we care for our parents and we work outside the home and yet we are still paid less than men for the same job much of the time (Unless we work for Google or Starbucks!). We still need to claim our power. Men are still keeping us down and seeing us (Especially baby boomers) as a market for these horrific devices exemplifies this, does it not? These devices are an example of a manufacturer creating the sense of a need in a naive public for a device they designed specifically to enhance their profitability. Think right now of all the products these corporations have created a sense of need for…causing you to have to add something else to your shopping list and part with more of your discretionary income to purchase. We need to start eliminating to this need creation victimization. It is done not to make your life more enjoyable, it is done to make the corporation money at your expense. We do not need all these poison cleaning products. We can learn to use vinegar, soap, water, epsom salt, baking soda and other things and mix them ourselves. This is about a lot more than pelvic mesh and it has been going on for decades, probably since the industrial revolution or earlier. Women can do a lot to stop it, be the change we need in the world. This is how I am getting even, this is what I am doing with my rage. There are many websites where we can go to learn how to make out own cleaning products and do many other things to help ourselves and stop feeding corporations that are killing us, poisoning our children and the earth.

        I know we can not all do this but I want to share something I am going to try….my zoning allows me to keep chickens and maybe goats. I have been researching this and talking with the folks at the Tractor Store. In the spring I will be all set up to bring some hens home. I am allowed to have up to six. I will not need to buy eggs any longer and I hope to share with my neighbors building a sense of community. If I can have goats I will try (gulp) to make goat cheese. A friend grew up on a farm in the mid west and all she ever drank was goat milk. She is an artist and retired teacher and has never been sick a day in her life! Genetics play a part but good food is like medicine. These kinds of things also keep us focused on something other than our pain unless it is really bad…mine varies, at least for now so I can do some of these things which can bring one great joy. I have two mature apricot trees and if I have a good harvest next summer I will share these with my neighbors also and hopefully learn to can some also. I want to build raised beds in the back and grow vegetables too so I reduce my food cost and ensure high quality organic produce. I only have 3/4 acre but there is a lot one can do with a fairly small space. If I keep bunnies they make wonderful fertilizer. Let’s take our sorrows and create something beautiful. The evil doers want to, in effect, keep us barefoot and pregnant, at least figuratively, but we can, no matter how brutalized, how broken hearted, can create a better tomorrow for ourselves, for our daughters, for humanity, for mother earth. As a reminder, as an expression of hope…to remind myself on those very bad days…I am going to plant dafffodil bulbs and when I have forgotten them, one day I will look out at the hillside and see clusters of yellow flowers bobbing in the moving air and I think it will make me smile and I will remember my intention. We need to feed our souls in this way and in doing so we heal, our cells light up, our neurons glow and the dendrites stretch out and seek connections. If you care for and believe in your body it will care for and believe in you. Do not allow hopelessness or despair consume you or you will become lost and GOD will weep. I know, I have been there but I do not linger, I walk on. Do that, walk on, keep moving and when you hear a negative utterance in your head replace it with an affirmation even if you have to do it all day that first day, just keep on. If you can, ride a bicycle, go for walks, swim, dance even if you can not move well, even if it is hard, even if you do not feel like it, do it anyway. You were born to move.

        The evil doers may get away with murder, may avoid giving you any compensation for what they have done to you, and they may never be punished or prevented from engaging in such activities in the future, they may leave you terribly wounded and in pain for the rest of your life, but they can not harm your soul, and they can not wash away the knowledge of the evil they have done…they wear it every day, every minute of their lives and it will eat away at them, I assure you. It may make them seriously ill, develop disease, age more quickly, cause the dissolution of relationships due to their repressed knowledge of what they have done, and the price the innocent have paid, and they may endure a life of increasing torment even before they pass away. You can transform your sorrow, know a transmutation of the spirit, feel the wings of the angels about you, and live in the peace that they say is beyond understanding, In a way, you are free and the evil doers are in chains. You are women. You create life. Now you can create a life from your reality now. It may not be grand, it may be painful, it may often be lonely as so many do not understand this pain, but it can be a worthy life, and it can bring you enough happiness. The FATHER will handle the evildoers in his way and in his time. HE would not want you to trouble yourself about it. So lets beat our weapons into plowshares, be people of peace, the caretakers, nurturers, creators, and healers our souls know us to be and create life, choose life.

        Bejah

        • Barb says:

          BEJAH BLUE!! I have been worried for you, I already consulted another attorney firm, however I would end up with nothing so sticking it out with who I have! What I’m trying to find out is when these firms have come to a settlement agreement with 2 firms why wouldn’t that be across the board for all other firms with the same manufacturer? I also feel if my attorney firms had sent us all paper’s concerning what was/not going to be included in our settlements they would not have gotten so many on board, wonder if there was a reason?

          • Jane Akre says:

            Apparently firms are conducting their own negotiations for their clients. So it differs is my understanding.

          • Bejah Blue says:

            Hi Barb, Thanks for your kind words. It means a lot to me. The holidays are a difficult time, for all of us I am sure. I hope you found answers to the questions you posted beyond what Jane suggested. I have no idea how to address them or even offer a sensible comment on that. Please forgive me. Always there for you in spirit which is meaningful because it is like prayer…I think a little filament of light then connects us for a moment, like a shooting star or like the white light that we can sometimes feel around us like a cloud when people pray for us. If you have ever had your congregation in church pray for you…you can actually feel it….it is a beautiful thing. There are great mysteries and it is good that their are. There is much to believe in and hope for, even and especially beyond this life for those with a pure heart. So keep your heart light in this time. I am trying to do that and sometimes it is hard, and it is OK to have a good cry, actually it is a good thing, a sign of healing….for a long time I have not been able to cry at all for long periods of time but now that I have been getting out the holiday decorations I have been very weepy. Take care dear,

            Bejah

  6. msm says:

    If these three judges could sit back after the trial and conclude whatever they choose after assuming that they know everything from transcripts, why the heck was time and money wasted on a jury trial? Why not let both sides just submit papers stating their evidence and position to these all-powerful and all-knowing judges and let them issue a verdict. This is ludicrous and I can’t help but wonder how much her gender and death influenced their decision.

    • connie says:

      Jane A.

      This verdict from these judges is horrible! Can you please find out how we can contact them and let them know our feelings and let them know how WRONG they are. It sickens me how they can over turn what a jury’s verdict was. NO JUSTICE!

      Thanks,

      Connie

    • Bejah Blue says:

      Right MSM, A dead “old” black woman….ripe pickins for these good old boys. Did you read the bits of their profiles Jane posted….talk about food for thought. Jane is so skilled at creating ways for us to read between the lines. Rules of conduct dictate much of what she can write but I would love to be invited to a dinner party at her house and talk deep into the night. So now it is clear they even go back and dig up our dead bodies and stab us in the back long after we are gone. What is it they call those who prey on the dead?

      Bejah

  7. stopmeshimplants says:

    I feel as if we all take one step forward and twenty steps back. Whenever a plaintiff wins their case I think okay the truth will come out. I have tried to be positive and optimistic despite my chronic pain and life that was changed forever by these devastating mesh products. Now, with this latest of Ms. Batiste case being overturned, I have no more faith in our judicial system. I am sorry to say I think most everyone is correct that these manufacturers are in with all of these judges. I am not being paranoid. I am just finally understanding how all big pharmas work. This is a very sad outcome for her family.

    • Bejah Blue says:

      Think of it this way, not twenty steps back (but I know what you mean)…rather we have not moved at all but the evil-doers have causing us to be at risk for feeling this way but DO NOT. That is what they want; To destabilize you, to make you feel hopeless and victimized and all those things women have always been made to feel by Animistic cultures (Male dominated). Remember always you are a person of light, you stand in the light of truth and that gives you great power although it may not be evident and it may not be earthly power (not at the moment anyway). The adversary is of the dark side. Do not allow it to influence you.

      Bejah

  8. kitty says:

    Many many people are being paid off.

  9. nobody says:

    “This is ludicrous and I can’t help but wonder how much her gender and death influenced their decision.”

    AND YES YOU CAN SAY IT, AND HOW MUCH HER RACE INFLUENCED THEIR DECISION!

    Poor black woman files lawsuit, court looked at it like she wanted money FROM BIG PHARMA instead of justice. Yea WTF ever

    • msm says:

      I totally agree!

    • Barb says:

      Nobody and MSM- I would certainly hope RACE did not play any role in her case!! Maybe age was a factor however no matter what color we are, what age the reasoning behind all this mesh mess is insane!! I wish many Law Firms would read this page, do their homework concerning PP and all the evidence that’s been proven in and out of court! She lived a life of pain and suffering on so many levels and now her family mourns her and no compensation?? So sad!

      • Bejah Blue says:

        Barb, Do you see and feel the resurgence of racism in the news? It is terrifying and should be for us all. Today a young black boy is shot in the back…shot not with a taser but shot to death. I am not black but this makes me afraid. Next year it could be me. Racism and Nazism are resurfacing. Maybe it is a response to the threat of terrorism from exotic Muslim splinter groups as this kind of thing seems to surface when there is widespread fear in the world or nations. It is an increasingly dangerous time. I have a terrible feeling something terrible is going to happen this Christmas because the terrorists want to strike at the heart of our faith, not just Christians. It may be that they want to completely destroy civilization. I tell you that the same force drives these bad corporations. Racism would tear this nation apart potentially. What rogue terrorist group do you think would like to use racism in this country to effect damage to our culture and our nation? They would try to get us to turn on each other. We must not let that happen. We must not discriminate against middle eastern peoples either (It is hard sometimes I know), we must resist the street drugs that I believe are also an attempt to not just make money to perhaps support terrorism but to also damage our culture. In a way we women seem symbolic of what is happening in the outer world, the womb of the women is mirrored in the womb of the home, the community, the family, the culture…all are wounded, all suffer and we may not be able to heal them or they may bear terrible scars and be crippled for decades or centuries. We must, even in our pain, take out our figurative looms and weave together our lives, our hearts, our families and in doing so lend stability to our communities. Women do not realize how strong they are, the extent to which they are the carriers of the culture, and most of all they do not realize how powerful they are and they give away their power or listen to those that tell them they have no power. We must find our own truth and live it. Maybe some good thing could come out of this great horror. I believe it can save when I fall into a terrible sorrow but I find my way out….muddy, scratched and scraped and dried out….and I just stand under a stream of sacred water (Think of all water as sacred and see how it affects you) and I am cleansed and renewed and I can go on. Wishing all, for what it is worth, a happy Thanksgiving because we still have so much to be thankful for…lets all make a list of our blessings and put it away where we will come upon it next Thanksgiving then compare. If we have already gone to Heaven all the better. God Bless Sisters and Brothers,

        Bejah

  10. Anonymous Anonymous says:

    It’s absolutely rediculous how these people just come up with these big judgments and they know nothing on what’s going on J$J the ones with all the devils cash we will have our day if not you will pay for each one of us in court how dare you think you are above the law.

    There are honest people in this in the courts trying to resolve this I do believe in my heart that they will have to come to some sort of an agreement in the future as they just seem to go after the week cases this poor family.

    God don’t let these people get away with this.

  11. kitty says:

    TEXAS—home of Rick Perry and MD Anderson. Se real speakers and investors from J @ J will be at the Csncer Convention on day Nov 9 2015

    How

  12. kitty says:

    SO How can Linda Batiste fight a big

    company with their fine associations?

  13. Barb says:

    Greg, I have pudendal neuralgia at first they did think IC, however when I spoke to the trainee paralegal she laughed when I said I was diagnosed with IC, asked her if thats being included in the tier’s within the category’s, she said she didn’t believe that was even a condition I could not help in telling her just how woman feel and what from my research discovered what it’s cause was, then I said what about those with a life care plan for pudendal neuralgia she said I was the first person too have mentioned that! She told me there was a cutoff date on new diagnosis I told her she was wrong when they see how many injections I have had and blocks what do you think they will associate that with? They are not compensating for any infections, no compensation to have our SUI fixed they kepted telling me to keep seeking medical treatment because it would only prove and make our cases stronger, including all meds prescribed and everything would be taken into consideration,,,,,,,,BS!! The money’s in the category’s all ready include pain and suffering wondering how that’s determined, by the number of operations, i even wonder if having sever pelvic pain if compensated,bleeding from mesh erosion, apparently having more then 1 defective device has no more consideration then those having one, the more we go and be treated with these injuries we won’t see any extra monies they already knew when my 2 attorney firms and other firms engaged in settlement talks! AMS basically called the whole settlement based solely on what they felt harmed these woman! I told the trainee why didn’t we recieve a letter telling us what was going to be included, they would never have gotten the amount of woman signed had they done this. I told her I thought these 2 attorney firms were the type that would FIGHT and were SYMPATHETIC and we would get the most for our injuries. I did consult another firm advised not to seek another firm. So I hate to be the bad news carrier she said that if/when other manufacturer’s decide to come up with settlements they will follow same categories, tier’s! And these attorney’s thought it was a big win when they came to a settlement, and when people get their packets from your attorney’s about AMS make sure they have your medical records correct I was told I had organ prolapse prior to the implant I went through all medical records and nothing stated till 2011 I also told her If I had prolapse I certainly would have needed surgery before now. My surgeon is watching my prolapse closely when I first saw her in May 2015 rectocele mild-1/cycstocele 2. that has all changed surgery will need to be done no later then stage 3 which at that time both will be done. As devestating as every thing is, everything that has been proven, I feel like I need to send the paper warning of PP!!

    • Bejah Blue says:

      Barb, I wish you did not have to talk with a paralegal, much less a trainee, what an insult and she sounds like a very shallow and cold young woman. If you had demanded to speak with an attorney in the TORT area at the law firm I wonder if that would have helped. After all they will be in theory making money from your case and it does not sound like you are being treated with the civility that would be offered even a stranger. It is shameful, unprofessional conduct. I would report the little tart but then I am a troublemaker I guess. Maybe it is best to be quieter and a good listener and observer.

      I am so sorry about the medical issues you are dealing with…so frightening. I had prolapse of bladder, rectum, etc. and sounds a lot like your profile. They put Prolift in me. I immediately had symptoms beginning with pain and constipation that kept me in hospital additional days. Thankfully you seem to have a good surgeon who is taking proper care of you. In that you are lucky. Praying for you. Take care. Let us know how you are….

      Bejah

      • Still Standing says:

        Bejah…where the hell have you been? Was worried about you. Just a note to Barb or anyone wanting to talk to their attorney instead of a paralegal. They will charge you for the time and that will be paid out from your part of the settlement, so talk fast, or better yet, tell the firm that you would like one contact person there, probably a paralegal, so they will be familiar with your case and can answer your questions. You will still be charged for their time, but at a much lower rate. And please before you call, have your questions written down so you can ask in an efficient way. Establishing a good relationship with at least one person in the firm can be very helpful. I asked my attorney to give me a “go to” contact and have been happy with the way my questions have been addressed.

        • Bejah Blue says:

          Dear Still Standing, I am so sorry…I was not doing well (feeling a little too sorry for myself) and have you ever just wanted to go away and never again hear the word “pelvic mesh” again? I’ve had to address some financial changes in preparation for next year like changing some banks, moving some assets and debt around and all that stuff that also keep you up at night and of course trying to decide what choices to make for health insurance next year…decided to go from high option supp to Medicare back to a PPO because of the cost. Having considered suicide from a rather philosophical perspective periodically over the last few years I have come to understand that as I may have said before (due to early onset Dementia or just aging which causes us to repeat the same stories over and over…totally embarassing) it is not that one decides to take their own life, it is rather that their consciousness shifts to they see things differently and the logic structure also alters so suicide is decided on in a state other than the “normal” state for that person. The other thing I learned about suicide is that I probably would only give in to it if I was in unbearable and untreated pain (“Sorry old Ms. Blue but that is all the medicine you can have until 5am tomorrow morning after my shift ends…so you will have to wait until Veronika checks in). I don’t think anything else would cause me to give in to that unless my house was broken into and I was robbed and beaten and raped. So I am still here and so is my 4′ high pile of filing, and also my 5′ high pile (neatly folded) of ironing. Should I tell you about my sewing pile(s)? BTW I did send you a note to your private email but never received a reply which made my inner child rather sad. Thanks for caring, so sweet of you. Have a lovely holiday weekend.

          Bejah

  14. Greg Vign says:

    When the judges see the evidence of a properly presented case based on an anatomic basis of nerve injury justice will be served. If plaintiff attorneys aren’t reexamination pain… Then we have a problem. Get the care you deserve and need. It will be ok.

    • anonymous says:

      Dr. Vigna, I have a few questions for you if you don’t mind. They’ve been saved in my phone so I will copy then paste here. Thanks for your help.

      How can a person know if nerve damage is from the first surgery (placement) or erosion and contraction…. when there’s been exposure, erosion, and an implant found to be too tight a couple years later? I had a hard recovery in the hospital and once home. Things got better for a while and then a lot worse.

      Do you see good results with a combination of medications and nerve blocks? What are the chances of improvement with destruction of nerves? I think you mentioned 33% with compression, but is ablation better with multiple damaged nerves, and what are the risks?

      How is a case viewed and “worked up”, as you say, if removal operations resolved some complications but others worsened or began? The removal surgeries were difficult, and everything was explained beforehand. Most was taken out, but some portions can’t be removed. I guess I’m wondering if removals are blamed and impact a case even if needed and suggested by doctors because of severe pain and other complications. Nerve injury was discussed as a possibility before the operations. Exposure, chronic pain, pelvic floor dysfunction, discharge, dyspareunia, and other dysfunctions had been diagnosed. I don’t regret removals because of some improvements and what the implant looked like and was doing, but retention’s worsened, infections are chronic, and nerve pain along with other problems make most activities difficult or impossible.

      • Bejah Blue says:

        Anonymous, This is a very valuable post…thank you for sharing it with us. I will be so interested in what Dr. “V” says in response to your questions and (selfishly) hope he posts reply here and not privately but most important is addressing your concerns, to help you.

        Bejah

  15. maria garcia says:

    Can someone tell me why Dr. Greg Vigna the nerve doctor which is also a lawyer is not used like crazy by Plaintiff lawyers? I am going nuts trying to figure out why causation was not proven in this and many other cases. If Dr. Greg Vigna knows that the mesh causes nerve destruction by “DESIGN” is that NOT CAUSATION? If I take anything and manufacture a product and a person finds it to cause some sort of discomfort then they have a choice to STOP USING THE PRODUCT. Johnson and Johnson Ethicon mesh products by design are specifically manufactured and installed according to the IFU. If the product connects to parts of the body that are near nerves damage results. How is it that when the master minds that decided to create a product that is implanted permanently never thought OMG we are too close to nerve bundles which can cancel out the benefits of our GOLD STANDARD PRODUCT! Every nerve specialist like Dr. Greg Vigna here on MND knows this. Why is it that the focus has been on the affect rather than the cause? Why is it that this giant white elephant is being ignored. It is the real source of everyone’s pain and everything else is just icing on the cake.

    • Jane Akre says:

      Agreed. Lawyers could be working up cases more aggressively it appears, unless they are losing interest in these cases due to the low settlement amounts being offered! Now is the time to become more aggressive, not less. Easy for me to say, I’m not out thousands on every Plaintiff.

    • K says:

      Well said!!!

    • Greg Vigna says:

      I’m not the easiest person to work with (admittedly). But saying that I have written to empower women to demand more out of the health care industry and now it is time to demand more out of their attorneys. I am obviously speaking to those women with PN and/or CRPS.

      I will always be an outsider in the mass tort crowd because I am a catastrophic injury doctor/lawyer/and life care planner and PN and or CRPS doesn’t fit the ‘numbers game attorney’s model’. This is my last mass tort and as I told one of the few attorneys I deal with…too much value is lost at the expense of the injured.

      I am available at your attorney’s convenience. I had already warned of using the inadequacy of Dr. Margolis as an expert in causation weeks prior to this decision.

      GV

      • Bejah Blue says:

        I know I am a little late but wanted to chime in…Dear Dr. Vigna, there are a lot of things we need you to be, but speaking for myself, easy to get along with is NOT one of them. Thanks again for your presence, your honesty and your advice.

        Bejah

    • Bejah Blue says:

      Maria, IMHO excellent questions. I wish I saw more of a follow on to your post. Also, I think there may be a whole herd of white elephents at this watering hole. Thx for your remarks.

      Bejah

  16. maria garcia says:

    In the Linda Batiste case:

    The appellate justices noted that Ms. Batiste suffered from a number of medical conditions. Although they acknowledged her pain, they said specifically the witness, Dr. Tom Margolis failed to address a number of potential causes of Batiste’s symptoms:

    “such as diabetic neuropathy, which could be a source of her pelvic pain, and the possibility she suffers from interstitial cystitis, which could explain her pelvic and groin pain……Margolis failed to rule out the passage or the placement of the sling, as opposed to any defect in the sling, as being the cause of Batiste’s groin or pelvic pain.”

    “Margolis failed to rule out the passage or the placement of the sling” (THIS IS THE SMOKING GUN!!!!)

    Look at this statement by the judges at the appellate court. They are actually acknowledging placement as a being a cause of groin or pelvic pain. Plaintiffs need to rip that statement wide open like a can of worms and run with this. Placement how? Are doctors placing the mesh kits in specific positions according to the strict installation instructions taught by J&J Ethicon preceptors or are all surgeons just doing their own interpretation or methods. You can’t have it both ways. The judges in all cases say the product itself has to be found defective and that is why all the non product related truths cannot be considered in the product defect case. In the appellate court it’s OK to bring up maybe this and possibly that and Dr. Mogolis didn’t rule out all these other issues as possible causes? I would stop the madness that has been created by all of this “Opinion” and differences with courts, judges and juries and make it about the placement of the sling that causes the nerve pain for life. The other facts of mesh like erosion, scaring, infections and foreign body response all support nerve damage from the installation, placement and ongoing destruction of tissue and nerves on top of removal damage. Let’s not forget these mesh products are made to be permanent and proving nerve damage as the “Proximate Cause” is easy if plaintiff lawyers focus on cause then the affects which support the “Proximate Cause” as a matter of physical fact.

    To me, the cart has been in front of the horse and the standard process of presenting the same old facts using the same old methods are not working anymore. The focus needs to be the process of the woman, the diagnoses, product installation and placement equals end result. Why is it that the traditional methods do not have endless waves of women with nerve pain suing doctors all across America? Because there are not any women with nerve damage from the traditional procedures because mesh is not used and surgeons stay away from nerve bundles unlike mesh kit INSTALLATION! THE REAL DESIGN DEFECT!

    In the Carol Cavness Case:

    The jury had question about 11 am Central time for Judge Ken Molberg in his Dallas court. The jury had a question they relayed to Judge Ken Molberg in a jury note.

    What is Proximate Cause?

    The judge answered.

    “On page 3 of the charge of the court you will find a definition of proximate cause. You are to disregard that definition and substitute it with this definition.

    Proximate cause means a cause which was a substantial factor in bring about an injury and without such cause the injury would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a medical device manufacturing company using ordinary care would have foreseen the injury or some similar injury might reasonably result there from.

    There may be more than one proximate cause of an injury.

    Did you read that statement? The primary Proximate cause from J&J Ethicon is the product “Placement” by “Design” and the supporting cause of fact being the mesh material itself. The well known and documented facts of mesh failures in soft tissue support the causation and point right back to the primary proximate cause “Defective by Design” first by placement and secondly by choice of material.

  17. Dakeys says:

    Hi jane thank you for everything

    Everyone have great points here . So let me understand that after i took a look at WV website this is what i saw . J&J made this payment because of the dec trial ?

    Updated 10/29/2015

    The court entered PTO #201 (ORDER ESTABLISHING REPORTING ON PAYMENT TO THE MDL 2327 FUND)

    Also in a few days this is scheduled

    The court entered PTO #200 (Order Scheduling Status Conference and Meetings in MDLs on November 18-19, 2015)

  18. Gale says:

    We all to go to Washington, DC. Or We William Getxo nothing.

  19. Gale says:

    We get nothing.

  20. Vicki richardt says:

    I see here that alot of people at least had the revision surgery or are being treated my question is what if you cant have the revision surgery because i was told that they cant remove it.what is my other alternative?

    Am i stuck with it in me and left just to continue to pee in myself i dont get. I know the doctor said that your body tissues grows around it but do they know after so much time when its not possible to do anything.what i was told is it can be adjusted as well. Nobody ever told me that either.and many people shoukd have to continuec to keep having the same thing done over and over again that doesnt make sence . The complivation its cause me is that i have to live in a bathroom the rest of my life so im close to the dam toilet and and all tge fucking underware i have to buy asult to this failed device. If thats not painful enough for someone to see then mayve tgey should live in a bathroom and change underware 4 -5 times a day and see if they like it.

    • Advocate says:

      Vicki,

      There are about two dozen surgeons in the country, who specialize in the removal of mesh. They are the best of the best. They can’t always get all of the mesh out, but certainly more than anyone else. You might want to get a second opinion from one of these doctors and see if they are able to help you.

      I hope you find the relief you need.

      • elizabeth smith says:

        Ive had this mesh since 2010 Ive had two additional surguries for pieces that have broken off. Im in pain everyday and am on pain meds everyday. I filed with Levin and Simes in 2010. I never , well almost never get any updates. The manufactor is Boston Scientific. I live in AZ. I wonder if this will ever get settleld . And now my insurance does not cover my doctor. I dont know what doctor will even touch me if they know I am involved in a suit.. Sorry for the spelling , I can not find my glasses. lol

        • Jane Akre says:

          What doctor are you trying to see – a urogynecologist? Or a specialist in mesh issues? Your insurer needs to be reminded this is specialty care and not any doctor is equipped to handle these cases. Also is your law firm actually working up your case? Ask them who is handling it and whether they are co-counsel for a 5% fee. In other words, did they pass you along? This letter is dated but should suffice as a guideline to tell you insurer your concern about their attitude toward funding specialty care….. thank you

          http://meshmedicaldevicenewsdesk.com/open-letter-to-insurers-concerning-mesh-injuries

        • Still Standing says:

          Look online at your insurance carrier’s guidelines. They will have a process for an appeal. Do it and include a letter from your doctor that specifies what he is doing and the critical nature of your individualized care. Its going to get more and more difficult to get the care we need as people get pushed into insurance policies that limit physicians to an HMO and demands higher and higher deductibles. It will be so important to learn how to advocate for our own care and be prepared to do battle. My insurance has gone up from $900 a month to almost $1300 a month in the past two years. Unimaginable, but true. Just put on your armour and charge in.

    • countrylady says:

      Vicki:

      Go to Dr Raz at UCLA in California

    • Bejah Blue says:

      Vicky, Like you I have been told by four experts that I can not have the explant surgery (Revision is NOT the right term to describe it IMHO although it is widely used for some reason, maybe because it is less disturbing). I was told the risk of death in surgery would be too great because of the amount of scar tissue that had formed after four years. I also have malformed kidneys and ureters and this fact was also cited as a reason why a surgery to remove the Hellish mesh was not possible. I have since wondered if it would have been better to die in surgery under anesthesia….

      I am not at all incontinent BUT I have to go empty my bladder sometimes it seems like every five minutes. I have noted on this site that as a result I have developed a feeling of rawness from the constant use of toilet paper. Now I use only very soft paper and I pat, not rub. I also keep a bowl of clean water there and rinse myself after emptying my bladder…sometimes only a few drops….and that helps. The water is soothing. Then I pat again just a little. Now if I am at home I do not wear underpanties at all anymore and I tend to wear long skirts. This is much more comfortable. I know how you feel. I hope this helps you a little, gives you some ideas, options.

      At least you do not have the other thing I seem to have: Vulvodynia…constant burning that extends up inside to a degree. It like so much of this started post implant in 2010.

      Bejah

    • Bejah Blue says:

      Welcome to the club Vicky, or should I say “The golden years”. You could do what I do an just stop wearing underwear at home and opt for baggy sweats or in my case long cotton knit skirts (I have no incontinence) but instead I have agonizing Vulvodynia that mysteriously appeared post implant. I am beginning to understand what most of the puzzle pieces are and how we believe they fit together not that it makes me feel any better. Of course, if you can afford it you could have your bathroom redecorated since you are spending so much time in it…sarcasm is the refuge of the terminally pissed off! I am going to experiment with tropical fruit next summer….I imagine a very ripe papaya cut in half and applied to one’s woo-wa could be quite comforting, for example. We have to find humor in this nightmare I think or we will go mad. I keep lots of pure fragrant dispensing things in the bath so I never have to endure that outhouse smell, and that helps…aroma therapy! Hang in there, experiment, find things that make you more comfortable or less uncomfortable.

      Bejah

  21. Dakeys says:

    Have anyone saw that jnj settled the case for dec ? I just saw that

  22. msm says:

    Scottish Health Secretary apologizes to mesh survivors.

    http://news.stv.tv/scotland/1330205-shona-robison-issues-apology-to-mesh-implant-surgery-campaigners/

    Perhaps this is old news? Posted by Scottish media 10/06/2015

    • Jane Akre says:

      Thank you for posting it……. I missed it.

      • Barb says:

        Jane in your opinion that we are safe to state who our attorney’s are or do you find it risky?? Not using real name here just wanting to know how many have this firm or even just mail you my firms and see what your knowledge of them are?? They say the Florida Firm is one of the best, specializes in medical devices and have obtained millions/billions they are still stating this is believed to be the biggest mass tort however reading their web page there appears to be another case I will re-read that is much larger!

        • Jane Akre says:

          I don’t see why you couldn’t state who your law firm is….You are not using your real name or your full name. That way you can cross check with each other. I think it might be helpful.

        • Bejah Blue says:

          I on the other hand would NOT mention the name of my law firm on this site. I can not give you a good reason why, I just do not feel comfortable with that. I would not advise it either. Once you spill your guts you can’t take it back (Lovely image). Personally, I see no value in it but I should also add that I am troubled by anxiety, can be paranoid, and worry excessively. I would opt for what feels safe and follow my counsel’s recommendation regarding that and any other case related questions.

          Bejah (With all due respect to Jane and her knowledge of these matters)

  23. Barb says:

    What don’t understand is if certain Law Firms and AMS came to what/won’t be covered wouldn’t all Law Firms do the same such as any all infections? And I wonder with us who have been diagnosed with IC will be passed over and try to link our sever pelvic pain to that condition??? My firm’s agreement with AMS is no infections included, IC they call nonsense!! Mine is actually PN! I’m going to email one of the attorney’s to understand how/what is included in the packet and why like infections are not!!

    • Still Standing says:

      Barb. You are not being paid a certain amount for each medical issue you have and they are not considering any pelvic pain, recurrng UTI, IBS, IC or any related condition that cannot be linked directly to the mesh product. Since these are all overlapping conditions women exhibit with pelvic floor disorder., even those who dont have mesh, it would be a hard sell to prove absolutely that these occurred as a direct result of mesh. Yes, we can individually say with certainty that mesh caused all of these problems, but the scientifc evidence just isnt there.

      So, they are just dumping cases into tiers or ranges of injury , based on your medical records. In many cases, product in place without medical management is not awarded, product in place with medical management would be the lowest tier. The top tier would be for those who have a certain number of surgeries under anesthesia. This could be, for example, five or more surgeries. So someone with 5 surgeries and maybe 8 or 9 surgeries would be lumped into one settlement tier or category. The middle tiers would be set up similarly. Obviously, it doesnt seem fair to those who have not been able to have the mesh removed, but an argument could be made that it isnt fair to the one who had 9 surgeries, either.

      It also isnt “fair” to the individuals whose cases were worked up to be trial ready because they incurred thousands of extra dollars in case costs for depositions, etc. So, we need to take a breath and realize that the settlements arent fair at all if our goal is to be made whole because no currency in the world could restore our health and well-being. Beyond this, “fairness” can only be defined on a very personal level.

  24. Vicki r says:

    I don’t understand something and someone please quote me if I’m wrong. From what I’m getting out of all this and were I’m at is that these people who made this mesh sling is basically bad material which they new about and intentionally hid it from doctors and hospital. This material is already been proven by the court’s that it is indeed defective from what’s it’s suppose to do which is obvious if You have to or had the revision surgery. As far as other complications has it been proven that it causes nerve damage and if so explain to me this part of the nerve involved. For myself the reason I had this sling put in because when I cough or laugh really hard I would pee also when I have to go sometimes it would be impossible to hold. After this sling everything seem to be better As far as when I cough or laugh no leakage but I still have the problem as when I have to go sometimes it’s imediately and sometimes it’s not. Also I feel bloated all the time,like swollen from my boobs to stomachs I felt like this sling was floating around in my stomachs somewhere cutting off circulation. After seeing the doctor he said its not floating around he could see it but he also said there was a hole there. I’m thinking my bladder can’t have a hole that this mesh sling either ripped o s something to the fact that at times when I get I your bladder will turn and when it does because of this hole in the mesh that it’s not holding up the bladder so that’s why I leak sometimes. Also having sex it seem I also leak as well. Does anybody else have this problem? When I was at the doctor he indicated to me that they can’t remove this because your intestine grows around it, it was not made to be removed but it can be adjusted. which I didnt even know that until then. And I found out that the doctor didn’t put this info in my file so I see him again on Dec 23 and believe me I’m going to ask alot of questions this time. And my attorney advised me to have this call written down as it well help my case more. So basically it’s proven that this is a defective device which was intentionally withheld from patient and I know its the one in the court’s today .and my complication are having sex and the defectivenes of this sling and it can’t be removed. As long as I have that on paper then its a smoking gun For me. Let me know if I’m on the right track here please.

  25. Still Standing says:

    Well, proving without a doubt that mesh is defective is not quite so simple..there are many doctors who contend that the implant surgeon was at fault or that the patient had existing health and lifestyle issues that caused the pain and not the mesh. Yes, some jurors have decided that it is the product itself that is defective, but a jury somewhere else didnt find that. So, that is why this is so complicated to litigate. All of this is brought up at trial but in settlements, the primary criteria for injury is number of surgeries one has had . If you settle, the company does not admit to any product defect.

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