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Attorney Tells Mesh News Desk Why the $73 Mill Win in Salazar Case?

dave matthewsMesh News Desk talked tonight with David Matthews, of Matthews & Associates, one of the Texas law firms that represented Mrs. Salazar.  This case was heard in state court under Judge Ken Molberg and only the third case naming manufacturer, Boston Scientific. The two cases heard in August, Cardenas and Albright, both were decided by the jury in favor of the defendant, Boston Scientific.  This compensatory and punitive jury award is unprecedented among any of the seven manufacturers.

Jurors decided the Obtryx has a faulty design, the manufacturer failed to warn and displayed gross negligence in awarding $23 million in compensatory and $50 million in punitive awards.  Boston Scientific has announced it will appeal.

MND editor, Jane Akre interviewed Matthews.

Q: How do you explain such a large verdict?

“I was somewhat surprised but I wasn’t shocked. Mrs. Salazar had significant, permanent and catastrophic injuries. She’s had four major surgeries following the implant. She still has mesh. You know in a TOT (transobturator tape) you have to jam the mesh through four layers of muscle, then it integrates into the tissue.

“The punitive aspect surprised me to the extent this jury was obviously angry.

“What we showed this jury not only did they fail to warn adequately but they intentionally concealed information. The sales department had an email when the Ross study came out. It said do not give this information to the doctors. The first big clinical trial for the Obtryx came out in December 2009 and it said, in a nutshell, Obtryx should not be used for SUI (stress urinary incontinence) until further long term studies are done.

In an August 2000 email, a Boston Scientific executive, Alex Robbins, told the sales force not to show physicians that company-funded study.”

 

Q: What about the medical malpractice action against her implanting doctor, Jorge Lopez?

“Med Mal was dismissed during the trial. Once we heard the testimony he truly did not know the true seriousness of the risk, we dismissed Dr. Lopez.”

 

Q: What about autoimmune issues? Does she have any?

“Autoimmune was not part of the Martha Salazar trial.

“The MSDA material safety data sheet said the resin should not be made into a medical device that is permanently implanted, according to the supplier Chevron Phillips. The testimony was that ‘we will not sell it to you at any price,’ but Boston Scientific went overseas to buy it.   The MSDS states: “Do not use the Chevron Phillips chemical material in medical applications involving permanent implantation in the human body or permanent contact with internal body fluids or tissues.”   ”

 

Q: Who were the corporate executives that represented the company?

“Boston Scientific brought two people down to try and tell a story that was not believed by the jury. Only been there one year… all the people who worked on this and other mesh products, they brought 2 people who knew little about warnings…or design.   They were nice but didn’t know anything about it.”

 

Q: Did Judge Molberg give you favorable rulings?

Dallas Judge Ken Molberg

Dallas Judge Ken Molberg

“Judge Molberg is one of the smarter judges I’ve ever been in front of. He clearly is an exceptional judge that follows the law. I don’t know anyone that knows more law that that.”

 

Q: What was left out of the case? Could jurors hear there are 66,000 cases filed in federal court?

“No, that did not come into evidence, neither did the 510(k) approval process by the FDA that does not verify safety and efficacy of a medical device or that the ProteGen predicate device the Obtryx named as its substantial equivalent, had been taken off the market because it was defective.”

 

Q: What did Mrs. Salazar do for work?

“Martha worked for a property management company and worked her way up into the company to make $65,000 a year. She was an awesome employee and her employer testified she was handpicked to become the head of the company. Due to her injuries now she cannot walk well, travel, get on an airplane, or perform any of her job duties without a great deal of chronic pain. She is only 42-years-old. Her new job would have paid her $100,000 a year.”

 

Q: Did Martha Salazar testify?

“She had minor SUI (stress urinary incontinence) and ended up with lifelong complications. This woman’s life has been turned inside up and down. It was an incredibly strong case. During the case she had to come and go because of the pain. She teared up reliving her journey and was on the stand for an hour. Felix, her husband, was on the stand for 30 minutes. It was powerful, emotional. The jurors were very objective. They showed no sign of emotion in the trial, which was interesting. I thought they would. Clearly the Salazars spoke to the jurors.

Documents in the Salazar case can be obtained here.

 

 

 

19 Comments

  1. Linda h says:

    I feel her pain physically and emotionally. She was lucky to have such a strong group of people fighting for her. She received justice and validation at long last.

  2. stopmeshimplants says:

    I am happy the jurors seemed to understand the pain this woman has suffered and will suffer forever. And it appears they also understood how this couple has been negatively impacted for life by this product. Sounds like they had some great lawyers. Glad the Salazar’s got some justice!

  3. Blessed one says:

    So happy for this outcome, I have the same sling and my case is with the same lawyers. Congratulations Salazar!

  4. As an observer of all 10 days of the trial, I was heartened and awed by the jurors in Dallas. It was unusual to have a medical device trial in state court and a privilege to watch the justice unfold. There is wisdom in a decision that was reached unanimously. If Boston Scientific appeals to the Texas Supreme Court, the court will have a conundrum to justify ignoring a unanimous decision by citizen jurors who provided the highest civilian peacetime service to this trial.

  5. Sandy says:

    I am happy for this couple! But I think many of us are experiencing the same thing to some degree. Many of us have been permanently hurt. I my self have had my marriage go to hell because of the constant loss of income, dreams companionship and activities we as a couple can’t do any more. We sit in our house day in and day out doing nothing. I have to fly back down to Phoenix for another procedure and borrow money from my 90 year old mother in law!!! What’s crime but yet she insists. She is a wonderful person and still loves me. I walk with a cane now. I was advised by Dr. Hibner a office I needed to do this or it would mess up my pelvic and back even more. I live in pain every day. I have no idea how many surgeries I will have to go through yet. I am thrilled for theses people! I just wish all of us could get paid what we deserve. I will be like this the rest of my life which could be 30-40 years. Some days I want to give up but I know God will take care of all of this. It is amazing how when I just went in for a very simple procedure (according to my doctor), I woke up and now my life has been taken from me for ever. The list of what I can do is much shorter than what I can’t do. The dreams shattered forever. The love of my outside activities gone forever. I pray that some day the mesh makers will swallow hard and say ok what do we owe you. I know I am dreaming but that is all I have as I lay here looking outside, all I have is dreams now of what life was like before this. I try not to cry but I can’t stop it. I try to be positive but I have been given nothing to be positive about. Maybe some day I can see the light at the end of the tunnel but right now all I see is darkness. The damage they have done to my body will never go away. Even more scary is the damage they have done to my mind. I will keep my faith and pray for us all. I hope some day they will have to account for taking so many lives and in a sense destroyed them. Thank God she got punitive damages. I just hope they are up held and that she doesn’t die before she sees the money in her bank account. God bless you Jane as always for working so hard on the mesh stories.

  6. George says:

    Yes Sandy, the award will help the Salazars with future life expenses, but proper health and lifestyle will never be recovered. Agreed, that the pain and mental effort required to get along on a daily basis is incredibly hard for healthy people to comprehend. Often asked if that was my last surgery, sadly we all know the answer. Having that next procedure lurking in the future is of itself mentally degrading, particularity since it will not be the cure we all seek. There is an eastern thought that once the “stomach” is opened to the atmosphere a painful slow demise will follow. G

    Thank YOU Jane!!

  7. Jane R. says:

    Sandy,

    No you are not alone in this for sure. I wake up everyday thinking I’m going to accomplish something. And everyday I don’t. I never was told that the TOT goes through nerves. I certainly would have thought twice about have the surgery then.

    I try to listen to inspirational people. I know that’s hard but I can for the most part be happy with what I have.

    Which really is nothing anymore. I’ve sold everything of value to help pay for a roof over our heads. My husband and I have had countless arguments that really stem from me not working. He works I don’t. And he doesn’t make much. I have applied for SSDI but the doctors don’t like to make statements against this surgery.

    I’ve had doctors tell me that the mesh doesn’t cause pain. My concern is the future. Will I be lucky enough not to get any worse physically? Doesn’t look so promising.

    This verdict has helped me a lot because I now know I’m not crazy. It really does hurt! I can tell my husband and son, look. This is your mother and wife.

  8. sandy says:

    I understand honey and I’m right there with youmy husband looks at me sometimes and I don’t think he has words to tell me how frustrated he is because he knows I am to arguments daily threats of divorce dailyfighting with the doctors when you read one person says its not defective it’s the placement well it’s defective if it was designed to be placed in an area with his nerves and muscles that could be damaged but nobody wants to hear nobody wants to listen to the victims that were in pain that we have damage will never be the same I don’t know the answers all I can do is pray and hope that my attorney is as good as I think he is

  9. sandy says:

    that supposed to be right there with you honeysorry I had to speak into the phone now cuz I can’t sit up to type

    • Disgusted says:

      This is a huge win for all of us. IT SENDS A HUGE MESSAGE TO THE INDUSTRY and hopefully to the FDA. It is a crime and jail is in order. I have this same product also. I feel for us all. I pray for us all. I still cannot believe the news will not pick up on this, it’s got to be one of the largest jury awards???

      • Disgusted says:

        P.S. I forgot – I cannot sit either, I lay down in the recliner to type on my laptop. I put a pillow under my head. It took awhile but now I can type reasonably well from this angle.

  10. All Meshed Up says:

    I hope the Appeal process will not be a long one for the Salazars’. But the Appeal has already been presented and I hope that it will be struck down post haste and the Salazars’ will be able to start the process of healing..

    Again a Manufacturer of mesh has been found to have a defective product yet the FDA does nothing. While this does send a “message” to the Manufacturers of these Polypropylene horrors I doubt that their reaction to the message will be the one we would all want. We also see that the 501(K) process cannot be used as evidence although these defective products were ‘Passed” and given the “OK” by the FDA. Would you not think that after a Court case finds that this particular mesh product is defective the FDA would jump right in to recall and investigate it? But they do not and probably will not. By reading through the MAUDE data base you can understand how the FDA treats our complaints. They treat our complaints and injuries with little regard. After many years they have yet to insure our safety by putting in place, requirements that ANY Mesh “product’ that has to be removed be sent to the FDA and the Manufacturer for a complete analysis. How simple would that be? They should also require the Surgeon and/or Physician to make a complete and concise report to the Manufacturer and the FDA. But they do not. These are simple steps that can be and should be taken by the FDA and the Medical Community but they DO NOT!

    With all of these Lawsuits and complaints would that not be the logical step to take to ensure the safety of the public? That fact in itself shows that the FDA regards Mesh Victims and the injuries we have received as a very low priority. No other Medical Device has caused so many injuries, serious life threatening injuries, without any scrutiny from the very Governmental Agency that is supposed to protect us. Am I wrong about this? I think not. And when seen in the light of this truth, the only other conclusion that can to be reached is that the FDA is in collusion with and protecting the Mesh Manufacturers from complete recall of these mesh ‘products’.

    The FDA was presented with Video and hard copy evidence of J&J knowledge of the problems associated with their Prolene Hernia Mesh. The Video was Ethicon’s own Doctor saying that they will have a major problem because this mesh product was over 100 times stronger that necessary and had the propensity to harden, ball up and cause mass damage to the patient. He went on to say that Ethicon will have to ‘deal’ with those patients at some time in the future. Then he went on to tout a “newer”, “thinner” more “pliant” hernia mesh that Ethicon was going to put on the market.

    This Video is the smoking gun that should have started a cascade of investigations but the FDA ignored it. As a matter of fact so did the Department of Justice and the U.S. Attorney General’s Office. Now we find out that J&J destroyed 100’s of 1000’s of documents, communications and research results. If WE did this, WE would be headed for prison. J&J gets off without one Executive or Company Officer be prosecuted. Again, the FDA, DOJ and the U.S. Attorney Generals Office is silent.

    If you have filed a MAUDE report, you probably received a letter from the FDA “Thanking You” for filing your complaint. In those letters it also states that” with two or three confirmed complaints” the FDA would issue a warning about that product and would start an investigation into it’s safety and reliability. I have 3 of those letters myself. Prolene mesh is still on the market and no warning was ever issued. So, this letter in itself is a lie.

    I will say this to the day I die, ” We have been the Guinea Pigs for the Largest Medical Fraud ever perpetuated against the American Public”. “And our own Government was part of it”.

    I hope and pray that we ALL will have our day in Court and that we get to see prosecutions and imprisonment for the people that did this to us. Best Wishes……..

  11. Disgusted says:

    I have sent letters to the FDA many times. I have received letters from them. But never stating that they would look into the product. I wonder if they different form letters and depends on whose desk it goes to? This would describe government efficiency well. I have written on the maude database and my words were changed. I kept copies of them by doing ctrl c, ctrl v into word. It is maddening. The MAUDE database is a joke. I’ve written to congress etc. Hopefully we will get many more juries who “get mad” and this is a strong message to the companies – they will lose. However for us guinea pigs, it is too late. Hopefully we will get some help, This is not new, the Dalkon Shield of the 70’s did the same thing. People have priorities and some of them hurt many others. They deserve jail. No question. Why do we need to keep making more laws?? Because there are those who will go around the rules and have no moral value whatsoever. Greed, corruption. Nothing new, just a new torture. God help them, I believe in judgement day. The FDA will not wake up until they are forced to. I agree they are probably in the pockets – just like the AUGS board. We are not the only one’s being messed with – there are many medical products out there that are torturing people.

    • All Meshed Up says:

      Ahhh…You are correct that they do not state they will look into the product. What the FDA does state in the letter is “If we get two or three CONFIRMED complaints, we will issue a warning”. They never say the will “investigate” it! That would mean they would ACTUALLY have to do something about the complaint.

      And as I have posted on here before, the main reason given in the MAUDE data base for “non substantiated” complaints is that there is no “failed” mesh to analyze. No mesh has ever been requested to be sent to the FDA or Manufacturer as part of a program to find out why there are so many complaints. The hospital where my Prolene was implanted, then explanted had at least 5 other men that had to have their mesh removed, along with a testicle. The women who is responsible for tracking any failed Medical products or procedures had NO idea what the hell I was talking about when I asked her about the other failed meshes. She had been there for 27 years, yet had never heard of a failed mesh! That included mine. She said that she would look into that and call me. That was about 3 years ago and still no call.

      So, what I have concluded is that the Medical Community could not care less about a failed mesh, does not report it nor is required to even tell the FDA or the Manufacturer about it. How can you track, record and report about these Defective Mesh Products if you do not require that they be reported or samples be sent for analysis? You can’t. And that is the point.

      How many of you women reading this, that had to have their TVT removed, had it sent back to AMS, Boston Scientific or J&J? If you did, you are truly rare. Because most people just want to be better and get the mesh out. They do not think about what to do with it unless an Attorney advises you or you are thinking out of the ‘box’.

      If you did not have your mesh sent, then it was destroyed and that particular piece of evidence is now gone. You are not alone. I do not know the figure of how many are returned but I do not believe that any of the Manufacturers are being over run by returned “failed” mesh to be analyzed.

      But, I digress. The FDA, through the letter they send out, gives the complainant the false presumption that something will be done about what ever product they reported. And of course, with a mesh product, that is nothing.

      If you have reported to the Manufacturer about your problem, they will request that you send them evidence of the “failure” via your medical records. With the preponderance of evidence that Prolene mesh injured me AND offering my removed mesh to them ( which they did not request), J&J could find nothing in my files to indicate that their product injured me. Without a Doctor’s report about the ‘why’ the mesh had to be removed, I had nothing. The Dr. told me later he was not “Required to make any reports to the Government and he would not start now”.

      The game is rigged, it is definitely not in our favor and the FDA is the ‘dealer’.

  12. Kitty says:

    Hello meshed up—Below is something I posted to you previously. I want to make sure you read this:

    To Meshed up_________I apologized for calling you a young man——–however I will not ask for an apology for YOU calling me a young lady—–I will say “Thank You” for the compliment. My———- you are so sensitive about women’s rights. I never used birth control pills—but I do think—-that if T18 and T 19 pays for YOUR Viagra—I should get birth control pills.(Satire) Now How do you like that? Kitty

  13. All Meshed Up says:

    For one, I did not nor will I call you a “young lady”. That is condescending. I don’t like it. You don’t like it. Get over it already. Next, I do not take Viagra. If I did I can get it easily from the V.A..

    The reason I am”sensitive” to women’s rights is because anytime a man confronts or argues vehemently with a women, we can be considered a bully. I am not a bully. I was raised with better judgement than that.

    I do not get your humor. And what the hell is T18 & T19 and what do they have to do with anything? Thanks for re-posting what I already had read and did not find worth responding to.

    Best Wishes…….

  14. All Meshed Up says:

    Thank you, Kitty, for clearing that up for me. I knew Medicare and Medicaid were paying for mesh implants. They are the main reason Mesh Victims are having their “Substantial Settlements” subjugated”. Thanks again….

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