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.
“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:
“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.
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.
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. #
Bastiste MEMORANDUM OPINION, Nov. 5, 2015 – Court of Appeals Fifth District of Texas, Dallas
MND, J&J Tries to Overturn Batiste Verdict, September 2015
Batiste Trials Ends With Defective Product Verdict, April 3, 2014
MND, August 14, 2015 ~ Linda Batiste to be Laid to Rest