Defense will try to show this week that her pain is due to osteoarthritis.
“I never knew what severe pain was until I had the mesh,” Mary McGinnis said as reported by Legal NewsLine, a news service owned by the U.S. Chamber Institute for Legal Reform.
McGinnis testified Thursday in the second week of her product liability, failure to warn transvaginal mesh trial. She is represented by Adam Slater of Mazie, Slater, Katz & Freeman.
McGinnis was implanted with two meshes made by C.R. Bard, a Murray Hill, New Jersey company. The two polypropylene implants – Avaulta and Align – were used to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI).
Avaulta is intended to treat stage 3 or 4 POP. McGinnis was reported to have had stage 2 prolapse.
Here is Slater’s opening, March 19, 2018.
The McGinnis v C.R. Bard Inc. case is being covered by Courtroom View Network (CVN). Legal NewsLine is receiving a feed from CVN, which has a camera in the court and sells video access on a subscription basis. It’s unclear whether the U.S. Chamber is paying for access or it’s provided as a courtesy, as has been done in the past for MND.
In his opening, Slater said the plaintiff has the burden of the proof through the preponderance of the evidence. Scrutinize everything I say, scrutinize everything the defense says, he told the eight jurors before Judge James DeLuca.
"You're going to hear facts hear arguments and decide true or false, yes or no, and most important what is ‘reasonable’. How should things be done… ultimately you decide the case.” ~ Slater.
McGinnis stood during much of her testimony Thursday, March 29. The severe pain results from sitting and makes intercourse with her husband, Tom, impossible, she said. She feels the mesh scar tissue and mesh implant shrinkage through her back legs, arms, neck and groin. She has pain in the pudendal nerve, the main nerve in the pelvic region.
McGinnis testified she can no longer lift children at her home-based day care. Her husband, Tom, lifts and plays with the children and does shopping and cleaning. Her sense of humor is gone, he added testifying Wednesday, and “She puts on a good show, but no, she is not comfortable.”
Adam Slater asked McGinnis to describe her pain. “Sharp pains in the vagina,” she said, which “radiates out and can go in any direction they want, sharp thick pains that shoot up. You realize nobody can help me – I have to tough it through. The pain is unending; the burning is horrible. It’s beyond debilitating. It hurts so much you can’t cry.”
She relies on Xanax but the pain is still there. Her physical therapist keeps her going. “I feel she saved my life,” McGinnis told the courtroom.
The defense, led by Lori Cohen, (Greenberg Traurig) will try to establish that McGinnis’ pain is due to a preexisting condition, arthritis of the hip and spine called osteoarthritis.
McGinnis chiropractor, Dr. Stacey Gray had insisted McGinnis have the mesh removed due to her symptoms after the implantation of Avaulta and Align.
“Previously there were no symptoms of (vaginal) burning; she did not have the symptoms prior to the mesh. It was clear the mesh created these problems for her.” ~ Dr. Gray
Dr. Samuel Snyder an orthopedic surgeon testified for McGinnis that a scan of McGinnis' spinal cord and pelvis showed the bones and spine and disc spaces were “well preserved,” in contract to the defense contention that degeneration of the spine and hip causes her pelvic pain.
Snyder said McGinnis had “moderate spinal stenosis (spinal narrowing aggravating nerves), but at this level it wouldn’t cause the pain she described in her records.”
Attorney Cohen established that Dr. Snyder has no experience with mesh implants.
On cross examination, Cohen showed the courtroom the informed consent document which included the possibility of erosion through the vagina, pain, infections, recurrence of prolapse and pain during intercourse. Although rare, "complications can have serious consequences," it said.
But McGinnis said she was assured by her implanting doctor, Elizabeth Barbee, MD of North Carolina. “I relied on Dr. Barbee’s judgment that it (the risk) was rare and treatable and went ahead and had the surgery.”
McGinnis said after she was implanted with the Align and Avaulta, the pain was “unrelenting” and at one time she leapt off an examination table and had to be physically restrained by three people.
Pain management wouldn’t help, “because I had the mesh they wouldn’t touch me,” she said.
McGinnis rested her case last week.
This week the defense plans to present corporate witnesses and medical expert testimony for the defense. McGinnis v C.R. Bard could wrap up this week. ###