U.S. District Court, Charleston, W.V.
Judge Joseph Goodwin has ruled the $2 million jury award in the Donna Cisson case will stand.
The August 2013 case against C.R. Bard over its defective Avaulta pelvic mesh was the first jury trial among the seven manufacturers whose cases have been consolidated in this Charleston, WV courtroom. Judge Joseph Goodwin is overseeing mutidistrict litigation concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse (POP).
Bard requested a new trial saying it did not receive fair treatment during the Cisson trial. In a ruling January 20, Judge Goodwin denied C.R. Bard’s motion for a new trial. See Cisson Doc #485.
Bard Avaulta Mesh, Miklos and Moore website
He also refused to find unconstitutional a Georgia rule that requires the Cissons to pay 75 percent of the $1.7 million punitive award to the state.
Donna Cisson Facebook page
You may recall Donna Cisson, a resident of Georgia, was implanted with a Bard Avaulta Plus mesh in May 2009. She complained of chronic pain and permanent injuries.
On August 15, 2013 the jury returned a verdict in favor of Ms. Cisson along with a $2 million award. Of that, $250,000 was for pain and suffering while $1,750 was a punitive award.
See background story here.
Bard then filed a motion for a new trial.
Lori Cohen, attorney for Bard
Bard had claimed it did not have a fair trial because excluded from trial was 510(k) approval evidence.
The 510(k) FDA approval does not guarantee safe and effective devices are put on the market so was deemed to be inapplicable in this case. The company also said that it did not have a fair trial because the Material Safety Data Sheet (MSDS) was admitted into evidence. That sheet which accompanies the raw resin supplied by the petroleum company, Phillips Sumika, to make polypropylene, had an explicit warning the material was not to be made into an implantable medical device:
“Do not use this Phillips Sumika Polypropylene Company material in medical applications involving permanent implantation in the human body or permanent contact with internal body fluids or tissues.”
See the background on how Bard executives skirted this restriction by forming a dummy company, Red Oak.
Judge Joseph Goodwin
Judge Goodwin writes, “This secretive conduct in an effort to sidestep the MSDS warnings suggests reprehensible conduct, weighing against remittitur.”
Bard also complained to Judge Goodwin that it deserved a new trial because plaintiffs asserted the company failed to perform pre-market human clinical testing. The plaintiffs presented “evidence to demonstrate that the device did not function as intended, and that it proximately caused Ms. Cisson’s injuries.
”Therefore the jury instructions on causation or on a design defect claim do not require a new trial, writes Judge Goodwin. “The arguments advanced in support of a new trial are unpersuasive.”
Georgia Tort Reform
Also on January 20, 2015, Judge Goodwin denied the plaintiffs’ motion to declare that Georgia’s law regarding punitive damages unconstitutional. Georgia’s statute says seventy-five percent of a punitive damage award belongs to the treasury of the state through the Office of the State Treasurer, in this case Georgia. Georgia added that provision as part of the Tort Reform Action of 1987. See background story on the award here.
Bard also wanted punitive damages reduced from $1.7 million to $250,000. That too was denied.
Bard is facing 10,610 more cases at this writing. See the MDL here
See more at Law 360 here.
See more on the Cisson case here