MND, October 2, 2015 ~ About 3 pm Central Time, the case of Cavness v. Ethicon rested and went to a Dallas jury for deliberation. (Carol Cavness v. Kowalczyk et al., case # DC-14-04220).
**Late Word** The jury was dismissed 5:51 EST saying they needed more time. They were hungry and tired! Monday they will continue deliberations!
The 12 jurors will have to decide if the Prosima pelvic mesh, used to treat pelvic organ prolapse, is defective in its design and its manufacture and if the manufacturer, J&J's Ethicon division, failed to inform the end user doctors about its dangers, that is, whether it was also defective in its instructions.
Previous trials have resulted in $15.87 million in judgments against Johnson & Johnson, which makes the Prosima. J&J has vowed to continue to try these cases rather than settle, as three other mesh makers have begun doing.
Jurors, art by Akre
Before Judge Molberg this morning, both sides discussed jury instructions. Among the 20 or so questions for the jury to consider, the Defense wanted to change some of the language. Defense suggested to Judge Molberg the instructions should say the Prosima is an unavoidably unsafe product because it is implanted surgically. That suggestion was overruled.
Defense wanted the jury to be told the manufacturer does not have a duty to warn the patient about the rate of severity of adverse events because the device is a prescription device. That was overruled.
Also Defense wanted the jury to consider when there is reasonable disagreement in the scientific community, it should not representat a liability for the manufacturer. That too was overruled.
Judge Ken Molberg, 95th Judicial District, TX
The case began Monday, September 2 in the 95th Judicial District Court of Dallas County before Judge Ken Molberg who has presided over two other pelvic mesh cases, both of which resulted in jury awards for the plaintiff.
In the case of Linda Batiste, her case against Ethicon over its TVT-O, the jury found the mesh to be defective and awarded her $1.2 million. In the case of Maria Salazar, the jury found for Ms. Salazar and awarded her $74 million over her Boston Scientific pelvic mesh. That amount was later reduced to half due to a state caps on jury awards.
Friday verdicts are not uncommon and at this writing everyone is sitting in the courtroom waiting.
Cavness is represented by Tim Goss and Richard Freese of Freese & Goss PLLC, Bill Blankenship of William F. Blankenship III PC, Richard Capshaw of Capshaw & Associates, Kevin Edwards and Peter de la Cerda of Edwards & de la Cerda PLLC, and Julie Rhoades and David Matthews of Matthews & Associates.
Thanks goes out to Courtroom View Network for access to a live feed in the courtroom proceedings.