Jury Instructions in Donna Cisson Transvaginal Mesh Trial

Jane Akre
August 14, 2013
Donna, Dan Cisson leave court July 8, 2013

Donna, Dan Cisson leave court July 8, 2013

At this writing, the jury has been sent to deliberate on the Donna Cisson v. C.R. Bard trial.

It has been a 12 day trial during which time the jurors have been allowed to take notes. In all, six jurors will render a decision which could come as early as this afternoon.

The last case naming a major transvaginal mesh maker, Ethicon, resulted in an $11.1 million jury award, $7.76 million of which was punitive damages, so this case, the first to be heard in federal court, has thousands of eyes watching.

Jury instructions will be important. Here is an interpretation of the instructions the jurors received, translated by a non-lawyer, your editor.

Judge goodwin 100

Judge Joseph R. Goodwin

Jury Instructions

Issued August 14 to the jury by Judge Joseph R. Goodwin, he says, “You must follow the law as I state it and apply it to the facts as you find them from the evidence in the case.” Jurors were allowed to take notes during the 12 day trial but they were advised “notes should not be substituted for your memory.”

In all six jurors will render their decision but there were two alternates who listened to the proceedings.

Judge Goodwin reminded the jurors he does not have “any opinion about the facts. You, not I, have the duty to determine the facts.”

Preponderance of the Evidence

The plaintiff has the burden in a civil action such as the Cisson product liability case, to prove every element of her claim “by a preponderance of the evidence.” If they fail to do so, the jury is instructed to find for the defendant, C.R. Bard. Judge Goodwin said that means the evidence with a “more convincing force” that convinces you “what is sought to be proved is more likely true than not true.” One does not have to be absolutely certain since that is an impossible standard. The judge reminds jurors that “proof beyond a reasonable doubt” is reserved for criminal cases and does not apply to the Cisson case, a civil action.

Jurors are instructed to consider all evidence no matter which side presented it. A failure to prove any essential part of the claim or contention by the evidence presented and jurors are instructed to find against the party making that claim.


Jurors can rely not just on evidence presented but on “inferences” or deductions or conclusions that any reasonable person would conclude from the facts established during trial.

Evidence in the Case

The jurors are reminded that any statement made by a lawyer is not evidence in the case. The lawyers should not be confused with witnesses. Opening and closing statements are there to guide the jurors, not substitute for evidence.

Jurors are reminded the Defendant in this case is a company, but companies act through their agents who are individual employees or agents.

Expert Witnesses

An expert witness can render their opinion or conclusion. That is why they are qualified as an “expert” to do so. If the juror does not feel the expert witness has enough education or experience, and the evidence outweighs their opinion, the jurors can disregard the expert opinion.

Jurors are encouraged to consider their witness’ intelligence, motive and state of mind. Inconsistencies in testimony or between different witnesses may cause the juror to discredit such testimony.

A videotaped witness should be given the same weight as if they were in the courtroom.

Proximate Cause

That is when the natural sequence of events produces a result, which without the event, would not have occurred. It is not a remote cause. Many factors may accrue to become the proximate cause. “The law does not recognize only one proximate cause of an injury or damage.”

An injured person can recover compensation from either or both of the responsible parties who were negligent.

“If all acts of negligence contributed directly and concurrently or together in bringing about the injury, they together constitute the proximate cause.”

There can be a recovery against a single responsible party or all of them.

However if the injuries could not have been forseen as the natural and probable result of the negligent act, then there is no recovery for Donna Cisson.

Comparative Negligence

If the defendant and Donna Cission were both negligent, or that she contributed to her injury and damage but her negligence was less than the defendant’s then jurors are instructed to reduce the amount of damages otherwise awarded to the plaintiff in proportion to the negligence of the defendant.

Strict Liability in Tort

Since a manufacturer is not an insurer, the fact that a certain product may injure its users does not alone make the manufacturer liable. In order to recover the plaintiff must establish that the 1) product was defective; 2) the defect existed at the time the product left the manufacturer’s control; 3) the defect in the product was the proximate cause of the plaintiff’s injury.

The jury will decide if the product was defective in its design. The manufacturer has a responsibility to exercise reasonable care in choosing the design of its product.

Risk-Utility Test

Jurors are charged with balancing the risk of harm in a product design with its use or benefit. Was the product useful? Was the danger predictable and is it severe? Was there any way to design the product that would have made it less dangerous? These are just some of the questions jurors must consider.

If the risk of harm by the product’s design outweighs its benefit, then the product is defective and the plaintiff can recover.

Read the rest of the jury instructions Bard Exhibit #393 Proposed Jury Instructions 20113432042

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