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75% of Cisson Punitive Damages Goes to Georgia

Scales of Justice, WikiCommons

Scales of Justice, WikiCommons

One day after the Donna Cisson case comes word that 75 percent of her $1.75 million punitive award will go to the state of Georigia’s general fund.

It is the result of the tort reform movement that has quietly crept into U.S. courts around the country, capping jury verdicts and making court a less tempting avenue for Americans to choose. Punitive damages are awarded by a jury when it decides to send a message that a company should be punished for misdeeds.

Georgia has the highest split-recovery laws in the country at 75%. See Georgia’s Code on Split Recovery here.

Cisson is from Toccoa, Georgia so state law applies to the recovery. While the bulk of the punitive damages award will go to the state, the judge may determine part of the recovery can cover reasonable attorney’s fees, according to the statute.

Send Them a Message

Henry Garrard

Henry Garrard

Henry Garrard, who represented Donna Cisson tells MDND, “The jury found they were liable for a defective product and a failure-to-warn and guilty of punitive damages which sent a message to Bard its conduct is not acceptable. I hope they begin to get the message.”

This is the first time a jury has decided a mesh is defective in its design.

Linda Gross, as jury verdict was being read

Linda Gross, as jury verdict was being read 

 

Last February, a jury rendered a decision against mesh manufacturer, Ethicon (Johnson & Johnson) on behalf of Linda Gross, a nurse from South Dakota. The jury decided Ethicon failed to provide an adequate warning to her implanting physician, was guilty of fraudulent misrepresentation to Mrs. Gross, and that fraud was the proximate cause of injuries to Mrs. Gross. She was awarded  $3.35 in compensatory damages and $7.76 in punitive damages.

The Trial

In his opening, Garrard presented what many consider the most damaging evidence against the company, that it knew of a warning that came with the raw mesh resin used to make the Avaulta as well as hernia mesh. (see back story here).

Lawyers for Cisson showed Bard executives discussed the warning it was not to be used for human implants, but decided to ignore the warning. Jurors awarded the Cissons $1.75 million in punitive damages to send a message to the company to discourage its behavior.

In punishing the company Bloomberg reports (here) Garrard urged the jury to “You have not heard Bard come here and say we accept responsibility and want to make amends.”

Drugwatch

Donna Cisson Facebook page

Donna Cisson Facebook page

In the aftermath of the jury verdict Drugwatch (here) reports that Dan Cisson told the jury he didn’t want money on the loss of consortium charge. He told jurors during the trial that any award should go toward Donna’s pain and suffering.

The jury did not award him but did award the Cissons $250,000 in compensatory damages along with the $1.75 million in punitive damages.

Donna Cisson told Drugwatch in an exclusive interview, “I feel this trial represented me and all the other ladies affected by this product…I hope this trial set a precedent for all the other women who have this product in their bodies… Please continue to pray for me and all the other ladies that have been affected.”

Cisson is preparing to have additional surgeries to remove about 22 inches of transvaginal polypropylene mesh left in her body after one explant surgery by Dr. John Miklos of Atlanta.

“I’ll spend the rest of my life in pain… my body’s a ticking a time bomb,” the 55-year-old nurse reportedly said.Bard general counsel greg dadika

Drugwatch quotes associate general counsel of litigation for Bard, Greg Dadika, “We disagree with the verdict reached by the jury and believe there are compelling grounds for a reversal…We will appeal and continue to vigorously defend against all of the lawsuits regarding this product.”

Bloomberg reports (here) Bard plans an appeal.

“We disagree with the verdict reached by the jury and believe there are compelling grounds for reversal. We will appeal,” said Scott Lowry a Bard spokesman.

Monday, the second of four bellwether cases against Bard is scheduled to begin after jury selection. The case of Wanda Queen will begin after jury selection before Judge Joseph R. Goodwin in the same federal court in Charleston, West Virginia.

There are more than 4,000 other cases waiting to be heard naming C.R. Bard, and altogether more than 28,000 cases pending against 6 mesh manufacturers including Ethicon ( Johnson & Johnson), Boston Scientific, American Medical Systems, Coloplast and Cook.

Avaulta Off the Market

After the Christine Scott case in Bakersfield, California (back story here) led to a $3.6 verdict against Bard, the company pulled its Avaulta mesh off the market.

That decision also followed an Food and Drug Administration order to conduct three years of post-approval monitoring of the women already implanted to chronicle the complications associated with Avaulta such as erosion, infection and organ damage. (back story here).

The fact it had been removed from market came up at Cisson’s first trial in July and was the basis for a mistrial three days into the proceedings. Judge Goodwin ordered there be no mention of the FDA in these proceedings.

Bard attorney Lori Cohen told the judge she could not explain the decision by the company to withdraw Avaulta from the market without going into the FDA mandate for testing.  Judge Goodwin agreed and declared the mistrial. See back story here.   #

Learn More:

American Tort Reform Association ATRA on limiting punitive damages

http://www.atra.org/issues/punitive-damages-reform

A background on Punitive Awards

http://epubs.utah.edu/index.php/ulr/article/viewFile/414/312

Split recovery awards

http://www.apa.org/monitor/nov07/jn.aspx

Pepperdine Law on Split-Recovery Statutes

http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=2135&context=plr

Georgia Code on Split Recovery

http://law.onecle.com/georgia/51/51-12-5.1.html

Essay on split recovery

http://www.fwlaw.com/news/268-splitting-punitive-damages-state

21 Comments

  1. Michele says:

    Still another way to punish the VICTIM. We can all say that the mfgs will be punished but hey folks, we all know we Meshies will NEVER regain the lost years and get rid of our pain. We were used as lab rats, actually not even that good. Most lab rats are put to death…we are the walking death of this country right now.

  2. Teresa Jones says:

    First, this is outrageous and that said, the state law should have been disclosed to the jury. Second, the problem is each woman is being weighed and measured by the income she has lost and / or the expenses she has paid. This is not the approach for the value of each woman’s claim. The compensatory should be calculated the VALUE of the woman plus her income plus the current and future expenses for her loss of VALUE and this VALUE is already establish by the National Bureau of Labor Statistics and other recognized organizations. The formula for compensatory can be: Loss Income + Value + Current and Future care. A forensic accountant could have done better to establish this wonderful woman’s compensatory loss. I for one am hiring a forensic accounting to establish this compensatory formula for my damage. I am not waiting for a jury to pick a number that is not fully explained by the testimony of a forensic accountant. I am valuable and my place is my family like other mesh victims is irreplaceable. This is the saddest verdict for the Cissons. It is not moral and it was not well presented and her compensatory and his loss of consortium must and should have been presented to the jury in a way they could have more justly compensated them.

    • Melynda says:

      Teresa – From what I was reading yesterday, in some states, it is illegal for the judge to instruct the jury to take split-recovery statutes into consideration when determining the award. Indeed, in some states, judges and attorneys are prohibited from even bringing it up. 🙁 I don’t know if this was the situation in the Cisson v. Bard case, but I agree – someone dropped the ball for her and her husband.

      • Betty says:

        Absoulutely unbelievable. I agree that our value is not our jobs. We have lost so much. Shame on the state of GA who has no understanding of what she has gone through and for those who cannot recognize the frivoulous lawsuits from the devasting ones. Shame on our country for not allowing hernia mesh and other medical device victims to be robbed of justice. I agree her lawyers dropped the ball. It seems as though the victims are being victimized again. I’m still praying that the FDA and the manufacturers will get the message – this is unacceptable to do to any human being. Period.

      • Kitty says:

        If that is true what u said “dropped the ball”….what could they have said if they could not bring the state law up? So the state gets the money.

  3. Paula says:

    So after the State of Georgia rapes her and her lawyer gets his portion she is left with pain, suffering, and mounds of doctor bills… SICK, Our Government totally SUCKS….. Was she and all other Georgia Residdents told this when they filed their suit with their lawyers? I sure was not…Never heard of such crap… Again our government slides what benefits them into play…..and screw the victim as usual…

  4. Laura Williams says:

    UNBELIEVABLE!!!! Our suffering will line the pockets of others with total disregard for our pain and suffering or the lives we lost along the way. UNELIEVABLE!!!! This statute was never dislosed to me. So who do we sue for this nondisclosure?

  5. Diane says:

    This is AWESOME!!!!!!! About bloody time the Manufacturer is being held accountable for their wrong doings!!!! They have robbed a woman of her life in every way! People do not understand that our problems from mesh go further and deeper than Mesh…we are isolated from family and friends because we are always “whinning” about something, we are isolated from the public because unless someone takes us out into the public we cant go on our own…we are robbed of our health, our emotions and it’s taking a huge financial toll on us because most of us can no longer work…that’s just scratching the surface of what they have done to us…we are robbed of the intimacy of our relationships and so are our partners…

    We have lost friendships because they do not know what to say to us…so,all in all, the amount awarded is very small in comparsion to what we have lost…there is no amount of money in the world that will ever give that back to us…So when people question these amounts keep in mind that the damage has already been done to us and our lives will never ever be the same…

  6. candy salo says:

    wowww! I live in Georgia!

  7. jade says:

    Garrad shouldn’t be proud of his poor representation of Cisson. He had everything to go on and just did NOT get across the UNbelievable blatant criminal actions of the Bard and its representatives. If you read the depositions, you’ll see that Ross and his cronies even admitted their lack of concern for their criminal actlions. In addition, I do not believe any of the victims were told about ANY cut our State’s get when we signed with our lawyers regarding punitive damages. Yes, our voices are finally being heard, but falling on deaf ears – UNfortunately, we have been duped, just like they say our doctors were! Cisson’s horrific and private story is now out there for everyone to know…for what?

    • Jane Akre says:

      Jade- As much sense as you make, this wasn’t a criminal case, it was civil…. so she could only recoup compensatory damages and punitive damages. There is a lot of thought that corporate crime should be considered criminal, especially when there is reckless disregard for others. You see it is criminal when corporations fail to report their taxes or park them offshore or overcharge the government for drugs or medical devices. The government doesn’t like that and then you could see the jail time.

      Seems as thought laws governing the rich and powerful are created by the rich and powerful and their friends in government. This is just my opinion.

  8. jade says:

    Jane -I am well aware this is a “civil” case, not criminal. Thank you for your timely reporting of ongoing proceedings. If the victims do not waiver in their quest for justice, perhaps their voices will make a difference in the way these corporations conduct business. This, as we all know, is not about monetary compensation – it is about moral injustice.

  9. John says:

    NO state has the right to rob ANY victim of even 1 cent of punitive damages awarded, the state is NOT the injured party here! The only compensation any state should be awarded would be IF the state paid out monies for the care of the victim due to the injuries suffered. Any state law concocted to take punitive damages from victims is UNCONSTITUTIONAL!!!

    • Melynda says:

      These punitive damage caps and split-recovery laws eviscerate the Seventh Amendment and leave private citizens with no ability to extract justice from the ones who caused the harm. Further, these laws then leave the American taxpayers footing the bill for the care we will need for the rest of our lives. Eventually our resources dry up and will have to turn to public assistance programs.

  10. Bejah says:

    I am shocked and insensed at this and did not know any more about this split recover law than the truth about the mesh before it was implanted in me. I agree with John that it is blantently unconstitutional but have you not heard John, “they” want to do away with the Constitution claiming it is antiquated and does not fit with modern American life? I am serious.

    There may be one good thing in this…it will raise awareness in some circles about the injustice of such a law, outside of Mrs. Cisson’s circumstances so that people can then pressure their state legislatures. If there were such a law, and states love anything that will make them money, then it must be reasonable and 75% is a long way from reasonable…the Federal Government should step in and cap the GA law at a maximum of 20%.

    The victim has suffered profoundly and more importantly will continue to suffer with what is a life sentence and surely a shorter life span. This added injustice speaks to the way the American people are treated by their country, a country that is increasingly not the nation it once was. It is sadly, increasingly a nation of, by and for the corporations, not the people.

    There is one other thing that may have a bearing on her award. I think that the hospital(s) where one had treatments/surgeries now have a right to recoup expenses as do her insurance companies. She will also need to compensate her counsel according to whatever arrangement they had. Someone please confirm this as it should be considered heresay as it stands.

    I hope that those with resources and power who see this grave injustice to us all will step in and help this woman who stands now as even more a Bellweather Symbol than before her case was heard. We must all pray for her.

    BJ

  11. Bejah says:

    Also, I just checked and California also has the 75% law as do about eight other states including Alaska, Georgia, Illinois, Indiana, Iowa, Missouri, Oregon, and Utah which have similar split-recovery laws. I never knew this. The CA law stipulates that the funds can (supposedly) only be used for public benefit related to the nature of the original case, as I understand it….BUT the CA law also states that the (Defense) attorney is allowed to have 25% of that 75% allocation to the state! HA! It goes on to say that the Plantiff must pay her counsel out of the 25% she is left with (In addition to his receiving another 25% from the state. Isn’t that a cozy little arrangement! Can you hear my blood boiling? We are like the serfs working the land…no rights, no voice, no options…it is inceasingly all smoke and mirrors. Heaven will be better people, the evildoers will not go to a happy place. We have to pay attention…they slip these laws through when no one is looking….we must be vigilant or we will lose out Democracy altogether…we won’t even see it happening…it will be like the frog placed in a pot of cool water that is slowly heated. If he were placed in a pot of boiling water he would jump out but beware the tepid waters! We must have faith in this jury and ourselves and never give up. We must take it a day at a time and keep fighting. Research everything. Be careful who you trust. There are even websites popping up that want to lend you money based on your anticipated award…what they probably want is you to sign over your house…..trust no one until you carefully check them out. Even some former mesh victims are now charging for their services (information, counselling). Very poor taste. Take care all, BJ

  12. Bejah says:

    Whops…make that the Plantiffs attorney gets 25% of the 75% that the state takes.

  13. PJ says:

    The amount is like nothing for all the suffering some, and I express SOME, women have gone through for years fighting infections, begging , pleading for even those in leadership in states to do something to help the women.

    MINE HAS BEEN 5 LONG YEARS, taking my health down, anti biotics, being lied to by docs and nurses, going through pure hell, trusting to only be lied to again, surgery that has done more damage inside with mesh still protruding out. THE RAGE, THE ANGER THE TEARS, SO LITTLE IS WHAT THEY OFFER TO WOMEN THAT WILL NEVER GET THEIR LIFE BACK. AND A STATE THAT TAKES SO MUCH, REMEMBERING MY CALLS FOR HELP TO STATE LEADERS AND AGAIN BEING TREATED EVILLY, BY THOSE THAT ANSWERED THE PHONES ,

    Women had noone to turn to to stop their pain, I could not even get somthing for pain and suffering, only after another butchered surgery. THE STATE SHOULD NOT GET 1 PENNY OFF OF WHAT WOMEN GET FOR THEIR SUFFERING, the attorneys had to listen to the women in anger tell their stories, and to fight for the women, no problem at all with attorneys being paid for standing with women at all. IT’S BEEN HELL FOR THEM TOO!

    but for a state to take 75% off of what that woman suffered , I KNOW i called those in state that showed nothing but evil provoking me to anger with their attitude that my suffering was nothing. THE STATE WILL GET THE TAXES OFF OF THOSE THINGS THE WOMEN WILL HAVE TO HAVE THE REST OF THEIR LIFE, LIKE PADS THAT THEY HAVE HAD TO DO WITHOUT, DUE TO HAVING TO BUY OTHER HOME REMEDY ITEMS DID NOT EVEN HAVE THE MONEY FOR DEPENDS AND WOMENS SANITARY ITEMS THEY NEEDED. THE TAXES IF WHAT STATE SHOULD GET FROM WHAT THEY USE THE MONEY FOR, i know 1 woman that was nice that worked for a leader in this state I owe those that showed kindness during my suffering.

    I DON’T KNOW ABOUT THE OTHER WOMEN , i CAN ONLY SPEAK FOR MYSELF, THAT AMOUNT IS MUCH TO LITTLE FOR THE SUFFERING SOME HAVE ENDURED. tHE WOMEN WILL SUFFER FOR THE REST OF THEIR LIFE AND WHAT CAN THEY ENJOY AS THEY DID BEFORE THEY GOT SO WEAK FROM INFECTIONS AND MORE, TO SEE OTHERS ENJOY IT. their health is gone as it was before mesh implant. GOD BE WITH ALL THE WOMEN THAT HAVE TRULY SUFFERED FOR YEARS AS SOME HAVE.

  14. pj says:

    Remembering, , will the companies pay back the time, I WAS IN MOST PAIN AND SUFFERING ABOUT A YEAR AFTER MESH WAS IMPLANTED , I WAS GETTING WEAK, AND NOT UNDERSTANDING THE INFECTIONS AND WHY, infections were not going away, being lied to by docs and nurses not wanting to admit what their colleagues had lied about mesh to me.

    A time that I GOT SHOCKING NEWS OF 1 OF MY CHILDREN , THAT HAD TO BE AIR LIFTED TO BIG CITY NEAR BY, a knock on my door at night brought the news , as my legs buckled under me hearing on job, might not live. I WAS GOING THROUGH PAIN AND INFECTIONS WITH MESH, SO SICK, i could not go to my child, (he was grown still my child) I WAS SO SICK, THAT i WAS AFRAID TO DRIVE, that long trip, endangering someone else’s life.

    I WAS , going through the worst hell, wanting to be with him. I TOOK OFF DURING THE NIGHT, and when traffic was light, and waked in unexpected, and said I AM STAYING FOR A COUPLE OF DAYS WITH HIM, AND i DID, as he under went more surgeries to save his life, I WAS SO SICK, THAT i had to call someone and TELL THEM TO COME BACK , AND NOT TO LIVE HIM. the mesh had took a toll fighting infections, I did not understand.

    CAN THOSE COMPANIES GIVE THE WOMEN BACK TIME THEY SPENT HAVING TO DEAL WITH MESH, CAUSING BLEEDING, INFECTIONS, AND MORE, THAT WAS TAKEN AWAY FROM ME BECAUSE OF THEIR NOT CARING WHAT THEY DID TO OTHER HUMANBEINGS?? AND MORE. i am sure all the rest of the other women would like their time back, of things they needed to do for their children and family and more , that the mesh, took away from their lives and living.

    WHAT ABOUT THOSE WOMEN : that were not able to get to doctors that knew what they were doing and lied to again , and more mesh after told they would remove it where it was protruding out in vaginia , and then to find out they were lied to again, and the mesh protruding as bad if not worse, too long to get to a doctor that knew what they were doing, the mesh has gone into other body parts, causing damages else where, WHAT HOPE DO THESE WOMEN HAVE? they took too long for some women to find out , so many doctors and nurses lying to them, THE ONES i APPRECIATE ARE THE ONES THAT TOLD THE TRUTH: THE GYNECOLOGIST, THAT SAID , i am sorry, I DO NOT HAVE THE KNOWLEDGE TO HELP YOU AND REMOVE THE MESH.Most were cruel and lied even deny mesh protruding out in me,

    I AM SURE NOT ALL THE WOMEN HAVE BEEN TREATED SO CRUEL AS SOME HAVE BEEN, WITHOUT JANE AND THOSE ATTORNEYS THAT understood or tried to understand women angry , we have to thank those attorneys also that fought for us in and out of courts,

    I owe so many people, those that were kind., the other women can speak for their self, but to me what the companies want to settle for is not enough for what the women have suffered and will suffer the rest of their lives. THEY WERE LIED TO, FOR THESE COMPANIES TO MAKE BILLIONS, ALL THE MONEY THEY MADE OFF MESH SHOULD GO TO THE WOMEN SUFFERING AND ATTORNEYS THAT FOUGHT FOR THEM, AND WEB SITES LIKE THIS ONE THAT HELPED WOMEN WITH TALK TO KNOW THEY WERE NOT THE ONLY ONES THAT HAD QUESTIONS AND NEEDED OUT PUT OF OTHERS TO KNOW WHAT THEY WERE DOING TO REMEDY AND LESSEN PAIN THEY WERE GOING THROUGH.

    THE HARD PART IT IS NOT OVER!

  15. Bill Thompson says:

    The real issue here is the attorney for Mrs. Cisson should have known about the Georgia 75 percent punitive damage grab and never allowed Mr. Cisson to be on the stand stating he does not want consortium. My wife and I went over our case with our lawyer and he basically asked that either we are in this case to win it or he would not take the case. The facts speak for themselves but to get in front of a jury and down play consortium and all that a husband goes through to redirect all attention to the woman is a huge mistake. Both husband and wife suffer in ways most people could not imagine and the stress load is overwhelming. Financial stress is the number one killer of any relationship and throw in vaginal mesh and you have a train wreck waiting to happen. Any man that goes through the phases of vaginal mesh failure with his wife will watch helplessly while she goes through multiple surgeries, infections and trauma. You cannot buy back the lost years and all of the damage that is done to the rest of the family as well. Our children watched their mother go from a totally independent woman to a totally dependent one unable to work, control her bladder or have normal bowel movements. The polypropylene mesh has stolen almost a decade of our marriage. How do you even approach your wife about sex when she is always hurting and your trying not to be selfish?

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