Pelvic Mesh Trial Judge Gives Jury Instructions in Huskey v. Ethicon

Jane Akre
September 5, 2014
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Judge Joseph R. Goodwin, Charleston, WV

Judge Joseph R. Goodwin, Charleston, WV

Judge Goodwin instructed the jury just before 5pm on this Day 8 of the Huskey v. Ethicon.

The Judge who has presided over this product liability trial for two weeks provided general instructions, a statement of the rules of law and the guidelines for their deliberations and verdict.

There are now eight jurors, 6 women and two men, after one juror had a family incident that caused her to drop out last Friday.

This is the second bellwether trial naming Ethicon to go before Judge Goodwin.

The last case, Carolyn Lewis, was ended abruptly by Judge Goodwin last February when he a granted a defense motion for a directed verdict. Two other pelvic mesh injury cases have gone before Judge Goodwin. Wanda Queen v. Bard ended on the eve of the trial as a settlement was offered. Donna Cisson v. C.R. Bard resulted in a $2 million settlement for Mrs. Cisson.

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The following are notes of the jury instructions that may or may not be entirely accurate. My apologies in advance for any typos.


“You are judges of the fact you must apply as you find them to the law as I give it to you. You must decide this case based solely on the facts. Solely on the evidence presented in this case the sworn evidence of witnesses and any maters…not evidence from my statements. Objections are not evidence. Any evidence stricken you should ignore the question.

Drawings and demonstrative aids are not evidence. If you find a demonstrative aide did not accurately summarize the evidence, ignore it. The law does not permit you to be governed by sympathy or prejudice; on the contrary it must be supported by the evidence and based on the law. Feel free to use your common sense, feel free to based reasonable conclusions. Feel free to consider each witnesses ability to testify, their demeanor, state of mind, intelligence, and whether consistent or inconsistent with the evidence. You may reject any part of the witness because you believe they are inconsistent.

You must evaluate that testimony on tape the same as if it were live. Unlike other witnesses, expert witnesses can offer their opinions on scientific and technical matters. Because they have expressed an opinion doesn’t mean they have to accept it. You should consider each opinion and give it the weight you think it deserves. You are the sole judges of the facts in this case. Persons are of equal worth and standing in the community. The fact that a corporation is one of the “persons” here must not affect your decision in any way. J&J is regarded as a person in this instance. They stand equal in the law.

When a corporation is involved it may act through its employees and its is responsible for acts and statement made within the scope of duties. Agents and employees are acting within the scope.

In the exhibits that were admitted as evidence, certain irrelevant information has been redacted or blacked out with my permission. The fact an exhibit was redacted should not factor at all, and you should not draw any inference. Some documents that have been received into evidence bear a confidentiality designation. That designation indicated by the word confidential was made by prior arrangement with the parties when they were exchanging documents. They were not made when the document was first created and you are not to draw any inference from a document if it bears a confidential designation.

Learned treatises, unlike other exhibits, you will not receive for the jury room. You should consider statements from these materials the same as any other evidence. During the trial the plaintiff admitted into evidence an examplar of the TVTO. This examplar product will be provided to you in the jury room during your deliberations. You only are permitted to visually inspect the product you are not to conduct a physical exam of the product. So no probing or pulling will be permitted. It is there strictly so you can see what has been described to you in the testimony. The plaintiff must prove every element by the preponderance of the evidence. Should their fail by the preponderance of evidence, you may find for the defendant on that claim. You must be persuaded in considering all the evidence that the evidence presented is more likely true than not true. Truth beyond a reasonable doubt is a criminal case it doesn’t apply here.

The First Claim- the TVTO was defectively designed. To recover damages for a defectively designed product, a person injured by the allegedly defective product must establish the following elements:

1- That a defective condition existed in the TVTO in the time it left the control of the defendants.

2- That the defective condition made the TVTO unreasonably dangerous.

3- That Mrs. Huskey was injured

4- That her injuries were proximately caused by a defectively condition in the TVTO product.

A product is unreasonably dangerous when the risk of danger outweighs the benefits of the design; when the product is put to a use that is reasonably foreseeable, considering the nature and function of the product. Proximate cause means any cause in the natural sequence produced the injury. It may not be the only cause. It is sufficient if it caused, with some other cause, acted at the same time which some combination caused the injury. Whether she proved defective design is up to you.

Mrs. Huskey also brings a claim for failure to warn. She contends TVTO is reasonable dangerous because it lacks an adequate warning. Because it can only be obtained by a physician, the defendant had a duty to adequately warn the physicians who implant the TVTO. The defendant did not have a duty to warn consumers such as Mrs. Huskey.

To find for failure to warn you must find that:

1- That the defendants failed to provide an adequate warning to Dr. Byrkit

2- That the lack of an adequate warning rendered the TVTO unreasonable dangerous

3- That Huskey was injured thereby

4- That her injuries were proximately caused by a lack of warning about TVTO.

J&J had no duty to warn of risks already known in the medical community.

Whether she has proven her claim for a failure to warn must be decided by you, the jury.

She also has a claim for Negligence. The defendant had a duty to use ordinary care to be free from negligence. That means the failure to do something a reasonable, careful company would do, or would not do under circumstances similar to that shown by the evidence. The law does not say how they would act. That is for you to decide.

Mrs. Huskey says they were negligent in two ways – In their design of the TVTO. To recover damages for negligent design, you would have to find that the defendant negligently designed the TVTO so that the result was she was injured and the TVTO was what caused that proximate injury by the negligence.

Negligent Failure to Warn – To recover damages for negligent failure to warn a plaintiff must prove, by the preponderance of the evidence, the defendant failed to provide adequate waning to Dr. Brykit; that Mrs. Huskey was injured; that the defendant was the proximate cause of Mrs. Huskey’s injuries. The defendant must provide that warning to physicians not consumers.

Whether she has proven her claims for negligence is for you the jury to decide on evidence presented at trial and the instruction I gave you. If you find on all of her claims design defect, failure to warn and negligence, only then can you decide on damages. There are no damages otherwise. If you find for Mrs. Huskey, you must then find an amount of money that will reasonably compensation her for damages resulted from the wrongful conduct taking into consideration the nature, extent and duration of her injury and the preexistence of any condition. Take into consideration the loss of a normal life, temporary or permanent ability to enjoy life and the pleasurable aspects of life. Any pain and suffering experienced and reasonably experienced as a result of the injuries and any emotional express. Any reasonable expenses of medical care treatment and services and the recent cash value of those services certain to be received in the future. Whether any element has been proven by the preponderance is up to you to conclude.

If you decide for Mrs. Huskey you may find the amount of money that will reasonably compensate Mr. Huskey for the loss of companionship of his wife and which has been proven by the preponderance of the evidence and has been caused by the evidence. You may not award loss of consortium if you do not find for Mrs. Huskey.

If you find for damages in the future you must determine those. If they are continuing damages, you must consider how long they will continue. How long they are likely to live, you may compute. You must determine their present cash value, the sum needed now compared to what will be needed in the future.

Elect a floor person, that person will preside and be your spokesperson in court. All jurors must agree on a verdict. You must consult with one another and deliberate with the intention of reaching agreement, if you can do so. During your deliberations, do not hesitate to reexamine your own views or change your opinion but do not surrender your opinion just to reach a verdict. When it is unanimous date, let the court know you have reached a unanimous verdict. You may want a meal, a break or recess for the day; you are now in charge of your schedule. You may send a note through the court security officer. You may not reveal how the jury stands on the issues. Sometimes I get notes asking for additional information you cannot get any. You have what you need.”

Judge Joseph R. Goodwin, Charleston, WV

Judge Joseph R. Goodwin, Charleston, WV

With that the jury went in to deliberate.

Two hours later, Judge Goodwin asked them if they would like dinner. No they said, and broke for the day.

Jury deliberations continue Friday at 9 am.

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