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Salazar $73 Million Transvaginal Mesh Award Slashed in Half Due to Tort Reform

Boston scientific logo larger croppedAt the time, it was the highest award ever given a woman injured by pelvic mesh. Now that it has been reduced in half, to $34.6 million, it remains the highest award ever in transvaginal mesh litigation.

The Dallas trial of Martha Salazar resulted in an unprecedented $73.4 million jury award to Mrs. Salazar. The Dallas real estate executive had been implanted and injured by an Obtryx sling made by Boston Scientific. The jury found the implant, used to treat urinary incontinence, was defective in its design.

Due to Texas law, that jury award has been slashed to $34.6 million. You can thank Texas law that caps jury awards, which on the surface seems to be a slap in the face of the jury system.

Originally the jury determined Mrs. Salazar should be awarded $23 million in compensatory damages and $50 for punitive damages. The Natick, Mass.- based medical device company was found to be grossly negligent in marketing the polypropylene mesh sling.

However, under Texas law, established in the rush to impost tort reform measures on the public, punitive damages are limited to no more than two times the compensatory or economic loss plus up to $750-thousand in non-economic losses, reports Reuters.  

Dallas Judge Ken Molberg

Dallas Judge Ken Molberg

Judge Ken Molberg, who was the sitting judge during the trial last month, was forced to reduce the punitive damages to just over $11 million. The company announced it planned to appeal the verdict. There is no word on whether it will appeal the reduced amount, though that is expected.

This was the third product liability transvaginal mesh trial for Boston Scientific. The first two were heard in Massachusetts and resulted in losses for the plaintiffs.

There are more than 23-thousand cases pending against Boston Scientific, according to its latest Securities and Exchange report, filed in June.  Boston Scientific (BSX) the third largest maker of polypropylene pelvic mesh behind Ethicon (Johnson & Johnson) and AMS (Endo).

Boston Scientific still sells Advantage Fit, Advantage, Lynx, Obtryx, Solyx, slings used to treat incontinence, according to its website here.

The women allege the mesh is defectively designed and that doctors did not receive complete instructions about the risk, therefore, they could not inform their patients. Complications include chronic pain and infection, mesh migration, autoimmune issues and pudendal nerve damage, among other problems. The plaintiffs allege the company knew the mesh was defective but continued to sell it anyway and to train doctors on use of the mesh even though some unqualified doctors were characterized as “low hanging fruit” by Boston Scientific.

Boston Scientific will face four plaintiffs who will have their actions consolidated and tried at one time in a federal court in Miami beginning November 3.

BSX Stock Chart, Oct 17, 2014

BSX Stock Chart, Oct 17, 2014

According to its latest SEC report:

“We intend to vigorously contest the cases and claims asserted against us; however, the final resolution is uncertain and could have a material impact on our results of operations, financial condition and/or liquidity.”

 

Boston Scientific and the Plaintiffs began discovery on 200 defective product cases grouped into Wave 1 and Wave 2. They were selected 50 cases at a time beginning last January, with another 50 selected in May. Plaintiffs have until this month to disclose experts and their reports that will be used in the trials. Expert discovery is set to close in January 2015.

The case is Salazar v. Lopez, District Court for Dallas County, No. DC-12-14349.#

Learn More:

Mesh News Desk – Attorney Tells MND About $73 Milion Jury Verdict for Salazar

http://meshmedicaldevicenewsdesk.com/patient-profiles/attorney-tells-mesh-news-desk-why-the-73-mill-win-in-salazar-case/

Reuters, Damages Slashed to Half $34.6 in Salazar Case, Oct 3, 2014

http://www.reuters.com/article/2014/10/03/bostonscientific-mesh-verdict-idUSL2N0RY1BY20141003

Boston Scientific, SEC 10-Q Quarterly report, June 2014

http://services.corporate-ir.net/SEC.Enhanced/SecCapsule.aspx?c=62272&fid=9601050

Mesh News Desk, Boston Scientific Must Pay Salazar $73.5 Million, September 8, 2014

http://meshmedicaldevicenewsdesk.com/patient-profiles/breaking-news-boston-scientific-must-pay-salazar-72-million/

9 Comments

  1. msm says:

    I never understood how limiting punitive damages could be considered “tort reform”. The laws vary so much from state to state In GA, the state takes 75% to go into the state’s general fund while Iowa puts the same into their State Civil Reparations Trust Fund. SC has a $300,000 cap. TX has an odd formula to calculate the max. Many states cap at $250,000. Some are 2-3 times the compensatory damages. It’s ridiculous.

    The only thing the caps “reformed” is the caution taken by manufacturers of devices, drugs, etc. before rushing the product to market through a broken FDA system. I do not know the stats but I would love to know if the number of lawsuits have been reduced since the caps were instituted. It would seem that the number of suits has actually increased due to the carelessness of manufacturers and the slew of devices and drugs entering the market.

    I can see that the caps might limit recruiting by unscrupulous attorneys but they will find a way to make up the difference by recruiting more clients and filing even greater numbers of cases to make up the difference. The only people penalized by the caps are the plaintiffs., the majority of whom would not file a suit on their own. The majority of clients in mass torts are recruited through advertising. That is not to say that they are not legitimately injured.

    So, in my opinion, reform will only happen when manufacturers are required to comply with a more stringent clearance process and are penalized criminally for repeated product recalls and/or documented injuries. Will this prevent devices and drugs from going to market? Not if the manufacturers begin to concern themselves with more than just their profits. They’re not developing new and innovative products out of the goodness of their heart. They make millions before a product is found to be harmful or defective. They sell to physicians and hospitals who rarely clear their shelves of recalled products. One example is Ethibond. Because the lot numbers were not recorded, there was no way to ensure that all of the defective product was pulled off hospital shelves. So, a surgeon is closing an incision during surgery and has no idea that what he’s using has been recalled. That’s just a small example of what happens everyday around the world.

    I’ll end my somewhat off-topic rant with this:

    Mistakes are made by doctors everyday. That will never change. They are human (though some won’t admit it). I have no problem forgiving a mistake and I have suffered from a few. But, if it is due to a doc who operated while impaired or knows he doesn’t have the training he needs to do the procedure, or some other obviously negligent cause, then that is unforgivable and the doc needs to pay for the damage done.

    The worst is the manufacturer who calculates how to market a product before calculating the risks to the patient. That is not an innocent error. It is premeditated carelessness and is sacrificing patient safety and well-being for profit.

    So, tort reform needs to look at the source of the problem that is to be reformed. Do not start at the bottom and penalize the plaintiff. Start at the top and penalize the manufacturers who cause the problem in the first place. That is what punitive damages are for.

  2. Michelle says:

    I also have the Obtryx sling- had a partial removal in June after it eroded. I developed Interstitial Cystitis immediately after the sling was implanted and continue to suffer even after partial removal. I hate Boston Scientific so much! This case is making headlines for being such a huge award, but no amount of money can make up for what she has lost, what many sufferers have lost, and the vast majority of us will see only miniscule settlements, if anything. I don’t expect to get enough to even cover my medical expenses, buy I hope this company ends up bankrupt, and mesh taken off the market forever. THAT will be the closest thing to justice we can wish for.

  3. Carly says:

    WOW…….It mention auto-immune issues. Does anyone know what kind of issues she was having with her

    auto-immune system?

    • Kim says:

      I don’t know what kind of auto-immune issues she was having, but it’s caused by the rejection of the foreign material. Infections, rashes etc. are some manifestations.

  4. msm says:

    Alright. This is the state of “tort reform”. A guy sues Red Bull because their slogan “Red Bull Gives You Wings” is not true. So the company settles for $13 million. So, if you purchased at least one can of Red Bull between Jan. 1, 2002, and Oct. 3, 2014, then you are eligible to receive either $10 cash or $15 worth of Red Bull products. No proof of purchase is required. This is the type of suit that needs to be “reformed”.

    Yet where there are real injuries, there are no resolutions. If there are settlements, there is a gag order so no one knows the paltry amount it took to buy silence.

    • Jan Urban says:

      Tort was suppose to stop the frivolous law suits..How these cases get onto the dockets. I will never understand. Cases like ours seem to be having a hard time. I think most of the comments on this site MeshNewsDesk should be entered into evidence. The written words of so many mesh survivors that tell the true debilitating effects of Mesh should be all anyone needs to hear to stop this night mare. But instead the Bull gets the Press, while more and more women are being implanted with Mesh and the Survivors continue their struggles of receiving proper follow up medical care. Some Justice System. And the FDA, Well….A Failed System indeed.

  5. Msm says:

    As of Tuesday, the FDA will no longer require manufacturers of medical devices to report changes made to the devices. Unless recalls are involved or safety issues. The manufacturers begged for this for several years because the process posed a “burden” to them. Plus, because the documents are public, they could be used in product liability claims against those manufacturers.

    It is the “806 report” and I find it ironic that the FDA document shows the following error:

    “(b) The following actions are exempt from the reporting requirements of this part: (1) Actions taken by device manufacturers or importers to improve the performance or quality of a device but that do not reduce a risk to health posed by the device or remedy a violation of the act caused by the device.”

    So, a manufacturer makes the call as to whether or not the improvement reduces rick to health. Of course they won’t admit that and report it because it would be evidence of prior knowledge that certain versions of a product they have continued to market were dangerous or unsafe. They do their own testing, make the call on avoiding reports to the FDA, and can change a product to correct defects that have caused harm thus preventing the generation of documents that could be used in a lawsuit filed because of injuries the product has already caused. Again, the fox is in charge of the hen house. The tail is wagging the dog.

    It looks like the allegations of Ethicon destroying documentation just got the green light from the FDA. There will be no FDA control on products once cleared by the 501K process. A manufacturer could create an essentially new product and market it under the same name of the product cleared just by making changes over time. It would be perfectly legal with no documentation filed that can be used as evidence after patients are injured even though the manufacturer may have known for years that the device was potentially harmful or had already caused injury which is truly why they “improved” it. Instead of pulling a product off the market for “business reasons”, they would just “improve” it and no one can show that a change was made unless the products are compared side to side. Also, the original product would remain on hospitals shelves and continue to be used.

    Companies would also have had to submit copies of all written correspondence discussing changes made to medical devices. Instead, patients are injured by the original product. The device is evolved into its new and impoved version. The injuries come to light. The manufacturers just stand by and say, “Who us? There’s nothing wrong with our product. We made no reportable changes to the product. You can’t prove anything.”

  6. All Meshed Up says:

    Ah, you gotta love the FDA! Their job was to insure the safety of the American public. Instead they are there to make it easier for manufacturers to put new products on the market. They are also the silencers of the injured! The MAUDE data base is a perfect example of taking complaints about an implanted Medical Device and ignoring every bit of it. Please remember, we are the Guinea Pigs for the Manufacturers of Mesh. Whats a few hundred thousand peoples lives compared to the overall well being of the Corporate structure? I mean really? We should be oh so grateful that they gave us this opportunity to be part of this wonderful experiment called Mesh!

    Maybe in a few years when I am dead, some one with power and influence will finally realize what mesh is all about. But then again, that is what the manufacturers are betting on. We, the first Guinea Pigs will be dead and gone not to bother them any more. We will be regarded as the necessary sacrifices that a great product needs to succeed! And the profits! Who can disregard the profits? A few hundred thousand men and women who ended up suffering for their remaining years of life is worth that Beach Vacation home or to send their kids to Harvard. We should not be so vindictive and mad when our suffering has made so many people rich and happy. And that is what this is all about anyway, isn’t it?

    We should all be oh so grateful that the FDA is so concerned.

    • Jane Akre says:

      Mesh up- you say it well…. experimental- certainly. Remember that word accompanied a release to a medical society but was later taken out aat the behest of a well-compensated doctor. This reads like a horror story….and really for what gain? ~ ja

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