Cisson Case Tests Georgia's Punitive Damages

Jane Akre
April 24, 2017

Donna Cisson Facebook page

Mesh Medical Device News Desk, April 24, 2017 ~ The Cisson v. C.R. Bard case resulted in a windfall for Georgia's state treasury, not for Cisson.

Tort reform came in Georgia in 1987. The Georgia Tort Reform Act was launched by Big Business, such as tobacco and asbestos, to curtail plaintiff victories in court.

The Daily Record (here) reports tort reform in Georgia led to an act that would reduce a plaintiff's punitive damages.

It's known as the split-recovery law.

Cisson was implanted with a Bard Avaulta pelvic mesh. In August 2013, a jury in Charleston, West Virginia awarded her $2 million in August 2013. That included $250,000 in compensatory damages and $1.75 million in punitive damages.

Under state statute, anyone who received compensatory and punitive damages, set to punish the company for bad behavior, would have to share 75% of the punitive damages with the state. It was the first time in 10 years, the split-recovery statute was enacted.

Georgia has the highest split-recovery laws in the country.

Georgia’s Treasury received nearly $800,000, the portion of punitive damages minus the costs of litigation and attorney’s fees.

The Daily Record reports the verdict was appealed by both sides, with Cisson arguing that the provision requiring her to relinquish 75 percent of the punitive damages to the state amounted to an unconstitutional taking.

In a case decided in January, Senior Assistant Attorney General Julie Adams successfully defended the law's constitutionality in the Fourth Circuit Court of Appeals.

Jurors in Cisson trial, the first Bard bellwether

"Cisson contends that she has a vested property interest in the entire punitive damages award, but, in the scant briefing she has provided to this Court on the issue, she has failed to articulate a viable theory in support of that contention," said the Jan. 14 opinion.

In the last 30 years, a dozen states have adopted split-recovery statutes.

A variation of split-recovery is “curative damages” where a portion of the punitive recovery is distributed to some charity.

Both sides say the statute encourages settlement. The company found liable does not want to have punitive damages on its record and plaintiffs do not want to hand over a chunk of money to the state.

But that didn't happen in the Cisson case, which was paid earlier this year, becoming just one of four cases that has gone to trial and survived an appeal. ###

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