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.
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.
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.
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.”
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.
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.
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. #
American Tort Reform Association ATRA on limiting punitive damages
A background on Punitive Awards
Split recovery awards
Pepperdine Law on Split-Recovery Statutes
Georgia Code on Split Recovery
Essay on split recovery