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Opening Argument Lays Doubt to Cavness’ Claim of Pelvic Mesh Injury

Dallas courtroom, 95th District, Texas

Dallas courtroom, 95th District, Texas

Mesh News Desk, September 22, 2015 ~ Jury selection continued for a second day in the trial of Carol Cavness v. Kowalczyk et al., case # DC-14-04220, being heard in the 95th District Court of Dallas County, Texas before Judge Ken Molberg who has presided over two other pelvic mesh cases (Batiste, Salazar) which resulted in a total of $75 million in jury awards for the mesh-injured women.

In this product liability and medical malpractice trial, Carol Cavness was implanted with the Ethicon Prosima Pelvic Floor Repair System, a polypropylene mesh used to treat pelvic organ prolapse. The Prosima was taken off the market by parent company, Johnson & Johnson in 2012.

Prosima for sale on ebay, Sept 21, 2015

Prosima for sale on ebay, Sept 21, 2015

Courtroom View Network will begin providing a live feed to Mesh News Desk (MND) Wednesday.  Court watcher Joleen Chambers provided the following observations to MND.

Tuesday, the group of 60 potential jurors was honed down to a dozen and two alternates after questions posed by both sides such as – have you ever had a surgical procedure, would you consider yourself conservative, moderate or liberal and do your rent or own your home, among other questions.

Richard Capshaw asked jurors if they could use the standard to find for the Plaintiff in a civil case – “the preponderance of the evidence” rather than beyond a reasonable doubt, the standard for a criminal action.

DON’T ACCESS THE INTERNET

Judge Ken Molberg, 95th Judicial District, TX

Judge Ken Molberg, 95th Judicial District, TX

There was some discussion with jurors about accessing the internet before Judge Ken Molberg. He told the jurors to only consider evidence presented at trial not what they might read elsewhere. In these days of on-line news, jurors are always cautioned against accessing the internet but J&J attorney Kat Gallagher, a partner with Houston-based Beck Redden LLP, made a special point of discouraging jurors from watching the news or conducting research online. In a courtroom discussion, the Defense objected to the blog, The Mesh Warrior. Blogger Aaron Horton had attended the Linda Batiste trial in the same courtroom last year and befriended the Batiste family.

Aaron and Linda, April 2014

Aaron and Linda, April 2014

Do not allow anyone to investigate on your behalf, warned Judge Molberg. Mistrials are expensive.

Cavness is represented by Tim Goss and Richard  Freese of Freese & Goss PLLC, Bill Blankenship of William F. Blankenship III PC, Richard Capshaw of Capshaw & Associates, Kevin Edwards and Peter de la Cerda of Edwards & de la Cerda PLLC, and Julie Rhoades and David Matthews of Matthews & Associates.

Ethicon is represented by William Massie Gage and Helen Kathryn Downs of Butler Snow LLP and Kathleen Gallagher of Beck Redden LLP.  Dr. Kowalczyk is represented by Philipa Remington and Cathryn Paton of Thiebaud Remington Thornton Bailey LLP.

A jury was finally selected after the late lunch break with an approximate even number of men and women.

Judge Molberg told the jurors that the Plaintiff will go first to present its case, followed by the Defense.  A rebuttal phase will be allowed. Jurors will be allowed to take notes. Only six were willing to do so.

Carol Cavness was brought into the court after the jurors were seated. Chambers says she was nicely dressed in a dark pantsuit with stylish dark hair and small gold hoop earrings. You could tell from her face she was experiencing pain, observed Chambers.

She appeared to be able to sit and did so without any special accommodations.

PLAINTIFF OPENING- DAVID MATTHEWS  

David Matthews, Attorney for Cavness

David Matthews, Attorney for Cavness

Opening arguments got underway around 4 pm with both sides given about an hour.  Dave Matthews opened for Cavness. According to Chambers, Matthews told the jury that J&J had had several meetings with the U.S. Food and Drug Administration about the Prosima pelvic floor mesh to treat pelvic organ prolapse. By June 2012, the company said it would “de-commercialize” (ie no longer sell)  Prosima. (See the letter Butler Snow taking four meshes off the market 2012).

Why would a company do that unless there were problems with the product, he asked.  One year earlier, the FDA had issued a Safety Communication that mesh used for POP repair had complication rate that was “not rare” and that it might not be more effective than a non-mesh repair of pelvic organ prolapse (POP).”  See FDA Notice here.

By January 2012, the FDA ordered three years of safety studies to be conducted by mesh makers, J&J among them.   See the MND story here.

When the Prosima was lifted from the market, J&J asked the FDA to lift its requirement to study the safety of the Prosima, despite the fact the polypropylene mesh had already been permanently implanted in countless women.

The FDA agreed.

Safety studies for the Prosima were not ordered and its safety and efficacy had not been established, something Ms. Cavness doctor did not know, according to her deposition.  She had already implanted 25 to 30 women with Prosima. A sales representative from Ethicon was even in the room during some surgeries.

That sales rep will be one of the witnesses called.

Mr. Matthews described the Prosima as a 4 inch by 4.5 inches piece of polypropylene with two arms that are pushed into a blind area of the pelvis. Much of it remains in Cavness’ body. The damage has been done, he said.

Matthews told jurors that Ms. Cavness was trying to keep up with the demands of her job as a Class A aviation mechanic. Juries tend to grant greater awards to women who work in demanding jobs, such as the Martha Salazar case against Boston Scientific that resulted in a $73 million verdict for Ms. Salazar last year.

Chambers say the attorney for Ethicon did not introduce herself to the jury.

Kat Gallagher, Attorney for J&J

Kat Gallagher, Attorney for J&J

DEFENDANT OPENING- KAT GALLAGHER

Kat Gallagher indicated the problems with pain Ms. Cavness experienced were due to her pelvic floor muscles giving out. Laying a foundation of doubt as to what ended Cavness in the emergency room during an episode of intense pain, she indicated previous pelvic floor problems were the cause. Pelvic organ prolapse (POP) is generally uncomfortable but not painful.  The demands of her job require her to lift all the time and Ms. Cavness is working with a physical therapist to address the pain issues.

Ms. Cavness has had a partial removal of her Prosima mesh. The arms remain behind and she experiences pain UTI’s and difficulty voiding. Still she is trying to remain on the job. She sees Dr. Michael Carley, a urogynecologist at Baylor Medical Center for the pain.

Ms. Cavness shouldn’t have tried to take out the mesh, Gallagher told jurors.

Peggy Pence P.h.D

Peggy Pence P.h.D

FDA expert Peggy Pence should appear on the stand Wednesday. As she has in the Linda Gross case and the  Budke case heard in Missouri earlier this year, Ms Pence will outline the introduction  of the mesh used for pelvic meshes, Prolene. It was too stuff for the vagina insiders warned.  Still it was cleared in February 2007 after J&J found a substantial equivalent already on the market, allowing the company to bypass clinical trials.

Ethicon is facing 29,000 other product liability cases consolidated in multidistrict litigation in Charleston, West Virginia and thousands more defective product cases filed by women from around the globe.   The company indicates it will continue with litigation rather than to begin to offer settlement to resolve the outstanding actions. #

24 Comments

  1. Lisa (Florida) says:

    Thank you Jane and Joleen for keeping us informed

  2. Mesh Nightmare says:

    I am lifting up Carol Cavness and her attorneys in prayer. May the truth be revealed and justice served.

  3. Bilal Robinson says:

    “Same problem with men and women because monofilament propylene isnt compatible with humans…..the real question is why are they still denying handicapping all these innocent people….they should feel the same pain and life altering situation and then let nobody have compassion or the proper responce…”Bard ,Davol,johnson and johnson are the devil ,if there is such a being..”Mesh is pure evil,shame on manufacturers and they evil ass attorneys who are attempting to cover things up …which is insult to injury!”

  4. anna says:

    Two former executives with the Peanut Corporation of America and a broker who worked with the company received prison sentences.

    ALBANY, GA. — Two former executives with the Peanut Corporation of America and a broker who worked with the company received prison sentences for their roles in the contamination of peanut products with salmonella that led to the deaths of nine and sickened more than 700.

    When you read this you know where J&J executives should be by now. We all know about their hidden documents, and we all know that 100.000.00 women don’t lie, so whats taking so long to put them where they belong.

  5. Bejah B says:

    Live feed via Courtroom View Network….how exciting. I must confess I did not know of the existence of CVN. For those of us who would like to watch can someone please tell us how to find this network…I would suggest scanning ones available listings for “CVN” and I expect it should be a free network. Please correct me if I am mistaken.

    Regarding the questions posed to the potential jurors, I would (1) Like to know what all of the questions were, and (2) I would like to know why it is relevant if one does or does not own their own home…What questions were proposed by the plaintiffs counsel, and what questions were proposed (demanded) by the defense.

    Tell us about this judge. The judge that hears one’s case can make a big difference (Unless they are bought and paid for by the defense).

    I would like to profile the jurors. I would like to see the face of the palintiff. Where is she Jane, do we have a headshot?

    We can not afford any loses in court….what is going on with this. I do not understand.

    I am disappointed that only six jurors had any interest in taking notes. This suggests they are not really invested in this matter at all.

    We have to be very careful about the cases that go to trial. There are unfortunately unsavory alleged victims who are just trying to enrich themselves at our expense, and present themselves as worthy of legal representation but they are, in fact, not. These women hurt all of us. We depend on attorneys to weed out these individuals but there are small time attorneys who want to see some action and make a name for themselves who will take such cases.

    Potentially, JnJ counsel (Some of the best in the world) can smell these cases coming and select them to expose and with the hope of discrediting all legitimate victims as well. Life is not fair, is it? All is NOT fair in love and war. Others may have a different perspective of all of this and this victim admits to having become cynical, and suspicious. I detest those plaintiffs who are presenting false claims, who like the defendants will do anything for money, they are very much alike. We need to watch for such individuals in our midst and be very careful who we respond to, what we tell others and what we sign up for.

    What we need is a sort of Board of Directors. I would ask Hal, Still Standing and others who are well grounded and objective. We desperatly need to be organized. If we have physicians, other attorneys, RN’s, Pelvic Floor PT’s in our midst I would suggest asking those people to step forward. I would ask some of the medical professionals who Jane has interviewed and who have a history of supporting us to step forward including Michael Margolis and the gentleman who is both an attorney and an MD (was it Greg Vigna?). There are people Jane has interviewed I would not ask and do not trust and come across to me as “Slick Willie’s”.

    Who among us wlll step forward and make this organization happen? We need to form an organization that has a DBA, a tax exempt status with a simple straightforward title that does not seem feeble or needy. We nee people who will let go of their little fifedoms, their egos, and join us under one united umbrella organization. Until we do these things we will get nowhere. I believe Still Standing alluded to the need for such organization.

    So what will the response be….silence…do you all just want to lay about in wait for your money???? Assume there will not be any money. If there is no money for you, why are you here? Do you care about this issue, do you care about your sisters and brothers who are in this fight for their lives? If you get a little settlement will you abandon us, take your money and run? Or will you donate a part of your settlement to help those in great need, who have no money for explant surgery but who still have time to have it done before the scar tissue begans consuming them. Are you here just to come to a place whre you can wail and weep and find some sympathy and comfort? Can you give and receive comfort or is it just all about you? These are tough, and even cruel questions but I think we all need to consider them. I am tired of the absence of action, of seeing only a handful of us doing anything meaningful. It is not right, it is not fair and it condems us to failure.

    Bejah

    • Jane Akre says:

      Only available to other media… as a courtesy since one camera is allowed in the court. Visit if you want to sit in the courtroom… it is unbelievable!

      • Bejah Blue says:

        Still confused…why is only one camera allowed in the courtroom and that with limited and costly distribution I am guessing, if this is a free country? This does not sound like an open judicial system to me. I guess I should have paid closer attention in Civics class, but then it probably was pretty watered down. Since we can not go sit in the courtroom, however many would be allowed and since no major media covers it, where does that leave us….we have Jane, at least there is that. How tragic. I wonder when they decide who can sit in court and who can not is it like Studio 54 used to be…the best dressed get in, the prettiest, the coolest and the rest go round the bend to the neighborhood bar and watch MSNBC hoping for some insight.

        Bejah

        • Jane Akre says:

          perhaps logistics allow only one camera. Any media can link to the one camera in the court so it is open to all…. problem is there are not any reporters interested!

      • Bejah Blue says:

        Jane, I have asked several times when there have been trials in the southwest if someone could give me a ride and share expenses but no one has. My car needs work I can not afford to have done and the DMV says I owe $600 for not reclassifying my car as non-operational even though I did mail in the form but I did not certify the mail and they have continued to claim they never received it. I really can not afford to rent a car on my own to trials at least for now so as much as I want to go I can not now unless I can go with others but no one responds to my requests. I have been working on logos, etc. but what good is having a dozen different logos and plaintiff groups. I feel badly being critical but the time has come for us to get serious, get organized and make some long range goals, beginning with a five year plan which I can do if you want since I do have a Masters in Org Mgt. It may not be pretty but I am willing to do a first cut if others will step in and work on it as well. I should add that I am not a business person but wanted the Masters in Global Org. Mgt. as part of my long range goal to earn a Ph,D. in Depth Psychology with a focus on the Psychology of Nations. I was one of those people who wanted to create a better world. I did not create anything and this mesh seems to have put an end to that dream of mine and many others. Anyway I am willing to do something but there are things I can not do. Surely there are things we all can do if we work together. We need a business model, five and ten year plans, a meaningful heartfelt mission statement, regularly scheduled meetings, committees that work on various projects, an art department, a PR department, a legal department….not unlike a business. Can we do this? What say you? In war, soldiers do not lay in the trenches and cry, they get up and fight on and that is what we must do.

        Bejah

    • Mesh Nightmare says:

      $200 to subscribe.

    • Mesh Nightmare says:

      Bejah, I hear you loud and clear! I also see the pity-pot comments by some of the ‘woe is me’ mesh injured. We’re all mesh injured. Some of us were implanted over 12 years ago. Then there are the angry comments using undignified language or using disrespectful characterizations for the judges and attorneys. That sheds a bad light on all of us. Lastly, there are comments from some people that have little knowledge about any of this long protracted process except that they are waiting for a payday. I’ve seen where some people do not even know what mesh they had implanted, don’t know if it’s an award or a settlement that they have coming to them, or if it’s a class action or mdl. You mentioned about if the mesh injured would financially help another mesh injured in need. Hah, I’ve watched how the ‘Go Fund Me’ ticker for MAM hasn’t ticked in months! It’s discouraging, to say the least. Thank you for your efforts to help all of us.

      • Bejah Blue says:

        Dear MN, I do not have any idea what GOFUNDME is although I have heard of it so probably a lot of others do not either. I have not made a contribution but I promise I will. Please review for us all how and where to do that for MSM. Thanks for bringing this up.

        Bejah

        • kitty says:

          WHAT IS WROnG WITH msm?

        • Mesh Nightmare says:

          Lisa Mason started a Facebook page called MAM – Mesh Awareness Movement.

          I have copied and pasted the following from the page.

          WELCOME!

          Together, we can make a difference

          http://www.gofundme.com/wx3wsr6c

          This is the place to take action! Here you can find Rally Dates & Places, post and share links for signing petitions or letters, Post info about a rally you are organizing or post any important events (such as hearing dates, shareholder meeting dates, FDA announcements, etc) Get involved and get others involved so we can make sure this doesn’t happen to anyone else.

          You can make donations to MAM – Mesh Awareness Movement by going to following site:

          http://www.gofundme.com/wx3wsr6c

    • Advocate says:

      Bejah,

      The process of jury selection, know to the law community as voir dire, is perhaps the most important part of trial. There are many attorneys who believe trials are won or lost at this very point. I would offer the opinion, that while the attorney facing a jury skeptical of their client position is not necessarily lost, it will make it more difficult to sway to their point of view. There are companies who charge a great deal of money to consult with attorneys about the perspective jury pool and who they believe make the most fairest of jurist. That reads …who’s most likely to see the case for their client.

      Questions are designed to provide insight on how a person might view certain facts about the cases. A question about owning or renting might provide a potential view on monetary award, the potential jurist might be asked to render. Perhaps it’s easier to ask this question of you… could you sit on a jury that was to hear a trial, where a person had sustained injury by what they felt were a defective product, made by JnJ? Would JnJ ever be able to get you to see it their way? Not all jurists have a prejudice but they all have an opinion. Is that opinion in your favor as a litigation participant?

      I have said previously in posts, even when a participant is deserving, it doesn’t mean they are rewarded. I have seen exit interviews with juries, where they found the facts of the case for a plaintiff but gave one dollar for damages. When asked why only a dollar was awarded, their answer was, they didn’t like the the plaintiff’s attitude or demeanor. I know of a juror who wouldn’t give an accident victim an award for their back pain. When asked why, he said,” because my back has hurt for over 20 years and nobody has given me any money.” There is no such thing as a sure jury for any side of a trial.

      I’ve included a clip from the movie, Devil’s Advocate. The jury selection assessment made by Reeve’s character is very real. The second reference, is an authored piece by an attorney, for the benefit of colleagues. I think you’ll find both interesting and informative.

      https://www.youtube.com/watch?v=9enPC37mHrM

      http://www.thejuryexpert.com/2010/01/16-simple-rules-for-better-jury-selection/

      • Bejah Blue says:

        Advocate, Thanks very much. I look forward to reading this material. I hope others “here” will also. I am afraid I would be excused as a potential juror because in my academic work and my life I have studied and experienced corporate patterns of behavior that leave me unable, I expect, to render a fair verdict. Having said that it seems increasingly difficult to define the word or the concept “fair” in this world. As jurors we are tasked with being fair to all concerned given the information presented to us, irrespective of any personal biases. People with expansive intellects would find all of that rather impossible I expect and so do we end up with dumbed down jurors? Is that what we want or is that where the system leads us? I find this very troubling and it casts a shadow on the whole system of justice in a free society IMHO.

        With respect to rendering a vote as a jurist I would hope that I would consider both parties arguments with equal attention and respect. What I am left with is then naturally filtered through my mind and the advisories of the Judge but I would not subject my carefully considered opinion(s) to the prevailing core opinion of the other jurists if I did not absolutely agree and that is probably why I am never selected to be on a jury. I am not present to be convinced that the “way” of the defendant is or is not more convincing than the “way” of the plaintiff.

        I am interested only in the facts, the body language and facial expressions of all concerned and the mood of the room as people present arguments and defend against them, perhaps what they wear and the inflection of their voices and other nuances.For example, did we all notice Speaker John Bayner (sp) when the Pope said MASS this morning….I could not decide if he had early onset Parkinson’s, had an itchy nose or was speaking with his dead mother, poor soul. I would, as a jurist, find that rather suspect.

        Interesting that you mention “Devil’s Advocate”. I only watched it once, it was a favorite of my brother who is also an attorney, maybe it is required study. I do have a copy so I will have another look at it. Thanks again!

        Bejah

  6. Josie says:

    I hope she wins it’s terrible that way we have to suffer and they make light of it

  7. kitty says:

    GALLAGHER STATES they should not have taken out any of the mesh. Why did they? Was it extruding? Did it cause urine retenton? Also thank you Joleen snd Jane. I’M IN DC—saw the Holy Father —-talked to a few women. Was thinking of going it alone with my sign behind the white house. Please do not be critical of the sisterhood—“A HOUSE DIVIDED IS A HOUSE THAT FALLS”

  8. Bejah Blue says:

    Kitty, At first I was confused about what you were referring to but then I read this. (I am still confused about “The sisterhood”).

    DEFENDANT OPENING- KAT GALLAGHER

    Kat Gallagher indicated the problems with pain Ms. Cavness experienced were due to her pelvic floor muscles giving out. Laying a foundation of doubt as to what ended Cavness in the emergency room during an episode of intense pain, she indicated previous pelvic floor problems were the cause. Pelvic organ prolapse (POP) is generally uncomfortable but not painful. The demands of her job require her to lift all the time and Ms. Cavness is working with a physical therapist to address the pain issues.

    Ms. Cavness has had a partial removal of her Prosima mesh. The arms remain behind and she experiences pain UTI’s and difficulty voiding. Still she is trying to remain on the job. She sees Dr. Michael Carley, a urogynecologist at Baylor Medical Center for the pain.

    Ms. Cavness shouldn’t have tried to take out the mesh, Gallagher told jurors.

    IMHO, Ms. Caveness needs to explain in detail exactly what she means and why, supporting her statement with facts.

    I believe that these mesh devices should all be removed, always and dumped in the belly of a rocket and shot into outer space. The only exception may be where it would endanger the life of the victim further to do so. On the other hand maybe it is best to bleed to death in surgery than have a long drawn out torturous death from a mesh device that remains in the body. Just to be clear, it was a physician that determined the mesh should be removed, not the plaintiff herself who we must assume deferred to her physician. Often the “arms” are, as I understand it, extremely difficult to remove but some relief is achieved by removing the poison polypropelene which has been proven to be both toxic and not inert in the human body. How any law firm of conscience can enter into a contract to defend such a client, is not only shameful, it is mindboggling and invites a loss of prestige and standing in the community of its peers.

    The plaintiff could have been experiencing pain from many varying sources, many post implant related and to say that she went to the ER due to pelvic pain caused by POP is rather simplistic…patients typically cannot identify the source of their pain as well as physicians, and often that is referred pain. To suggest that she was exaggerating or misrepresenting her situation, or not being truthful is a despicable assertion on the part of the defense. Doctors are taught in Medical School from the beginning that when a patient speaks of pain they should always be taken seriously just as a person who speaks of suicide should always be taken seriously. This is a flimsy argument and I am deeply offended by it.

    These victims do not run to the Emergency Room at the hospital every time their pelvic pain seems worse just as most women do not when experiencing the pain associated with menses or childbirth. Evidently the counsel for the defense has never experienced these things which puts her at a disadvantage in her effort to discredit the plaintiff. It is BTW common knowledge that in age every woman experiences some degree of prolapse in they have had children.

    Bejah

    PS Kitty, I hope I understood all this correctly, feeling a little tired. Time for a nap. Take care.

  9. kitty says:

    The questions I proposed were rhetorical

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