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