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Batiste v. Ethicon Enters Third Week – Defense Discredits L.B.

The Honorable Ken Molberg

The Honorable Ken Molberg

**Editors Note ** This is a rewrite from yesterday to incorporate afternoon observations. Thanks to “Cathy” a mesh-injured special court watcher who is among those sitting in this Dallas courtroom watching the proceedings in Batiste v. Ethicon as the trial enters its final week. She cannot be identified because she is involved in mesh litigation. Cathy is not a lawyer but an observer and shares what she sees. Thank you Cathy!

 

A must watch show 300 tv image

Cathy reports the day was full of videotaped depositions. Cathy says the jury is awake and the courtroom is full of 12-18  “suits” with laptops.  There appear to be four people in the audience who are not connected to the law firms present.

Blame the Victim

L.B. attorney Tom Cartmell not in court today.  Four other attorneys sat on their side of the courtroom and L.B. joined them at the table.  A young African-American woman, a paralegal it turns out, was with her taking care of her throughout the day and was very attentive to the plaintiff.

TVT-O from TVT Meshed Up Mesh, UK

TVT-O from TVT Meshed Up Mesh, UK

Judge Ken Molberg entered the courtroom around 9:20 and the jury of seven men and seven women entered the courtroom. Six are African-American as is the plaintiff.

L. Batiste (L.B.) v. Ethicon is a product liability case naming Ethicon, a unit of Johnson & Johnson. She is a 64-year-old woman who has spent the majority of her years in Dallas. On January 12, 2011 she was implanted with an Ethicon TVT-O as a treatment for stress urinary incontinence (SUI).  The TVT-O was launched by Ethicon in 2004 as an update to the TVT. The “O” stands for obturator approach, a new way to attach the mesh inside the pelvis as opposed to the retropubic approach.

During the morning, the defense continued their case. As is common in any proceeding, the defense must chip away at the credibility of the plaintiff. It is helpful if they can blame her for her medical conditions, specifically the injuries and pelvic pain from mesh.

Old Boyfriend

First lawyers for Ethicon showed a videotaped deposition of Alan Blackorn, a white man who moved in with L.B. in 2007. He was unemployed and says they were friends who had discussed getting married.  He verified that L.B. smoked but was trying to cut down, verified that L.B. had high blood pressure, was diabetic, had back surgery, was disabled. He went on to describe her disabilities such as her trouble walking.

Blackorn left L.B. in August 2013 when she had problems “downstairs” and he lost interest with her sexually. L.B.’s situation worsened and became “overwhelming.” He told jurors she was in the hospital when he left her.

Not too impressive to anyone, writes Cathy, but obviously he was there to point out L.B. did not enjoy robust health before her TVT-O implant.

Blame the Victim

Christopher Adkins MD was L.B.’s primary care physician. This was a very lengthy deposition because each and every office visit was brought up and reviewed showing all Linda’s many medical problems: osteo arthritis, Chronic Pain Syndrome, diabetes, obesity, high blood pressure, diabetic neuropathy, peripheral vascular disease, gout, COPD, arthritis and shingles.  They constantly reminded the court that L.B. was a smoker and smokers are poor “healers.” The physician stated that she continued to smoke even with COPD, she had gall bladder surgery and was not taking her medications.

Lawyer’s for the plaintiff questioned the doctor – Are you a gynecologist?  Are you a urologist?  Are you a urogynecologist, a therapist, a psychiatrist?

The next taped deposition was with a woman gynecologist, Dr. Brown, who took over the care of L.B. after her implanting physician left the profession due to early onset Alzheimer’s disease.

After reviewing her extensive resume, the questioning began.  Dr. Brown says in her practice she “desires” not to do TVT-O’s.  Most of her practice doesn’t have “true” stress urinary incontinence (SUI).  States she has done many TVT-O’s in her residency and practice.  She states that if a patient is the “right” candidate with pure SUI, she may refer them to urologist or urogynecologist.

Preferably a candidate would need to be a nonsmoker with low body fat or BMI (body mass index, a measure of fat). There is a higher erosion rate and longer healing time with a smoker and high BMI.  When asked if Dr. McNabb, the implanting physician, placed the TVT-O properly, she replied “Yes.” (This is an interesting answer that actually plays in the favor of the plaintiffs since many manufacturers blame the doctor for a bad placement.)

With the exception of bladder spasms the patient was doing well until a post-operative visit at two months that showed the mesh had eroded into the vagina. Dr. Brown simply cut the mesh with a scissor. She called it a small erosion and gave the patient estrogen cream.

When the doctor was asked it J&J ever informed/warned of some of these complications, the doctor replied “No, I learned it by evidence-based medicine (experience).  Asked if she allowed a pharmaceutical company to teach her the TVT-O procedure she replied no, she was taught in residency.

Dr. Gary Lemack, witness for the defense

Dr. Gary Lemack, witness for the defense

SUFU

Then the defense showed the taped deposition of Dr. Gary Lemack who is urogynocologist who does reconstructive female pelvic medicine. He is a professor in the Department of Urology at UT Southwestern.  Dr. Lemack is on the board of the Society of Urodynamics, Female Pelvic medicine & Urogenital Reconstruction (SUFU) as its Secretary/Treasurer and is an editorial Consultant for the American Board of Urology and American Urological Association. He has co-authored over 100 peer-reviewed publications and 18 book chapters according to his CV here. 

Here is his website.

Johnson & Johnson’s attorneys showed the edited version of his deposition to make their points. In it, Dr. Lemack called mesh the Gold Standard. (Cathy writes * On a personal note – I’m so sick of hearing that and so is my crotch!).

On the cross exam, attorneys for L.B. showed the portions of the tape that had been left out. On the cross tape, Dr. Lemack admitted the pain experienced by L.B. could be attributed to the TVT-O she had in her pelvis as well as her pain with sex. He added that the medical device was probably not “sized” properly which implies doctor error not a defective medical device.

The physician did her partial mesh explants and stated there’s not much else that can be done for L.B.  other than pelvic floor physical therapy.  Two jurors appeared to be sleeping at this time.

Dr. Charlotte Owens, signed off on Prolift

Dr. Charlotte Owens, signed off on Prolift

After Dr. Lemack’s tape, J&J wanted to bring in a surprise deposition- that of Dr. Charlotte Owens, the former Worldwide Medical Affairs Director for Ethicon.  Readers of MND may recall her taped deposition was shown at the New Jersey trial last winter of Linda Gross.  (See Day 11 Gross v. Ethicon here.)

This move was a complete surprise to the plaintiffs’ team. Owens had never been on the list of possible witnesses and besides, she appeared in a different case. Judge Ken Molberg agreed with the plaintiffs’ attorneys and decided to disallow the Owens deposition.

At 2:00 pm he sent the jury home and asks that they return at 9:15 am Tuesday.  Tuesday he said be prepared for a two-hour lunch break because there was something he had to do. Then the “suits” and judge start talking about what will be on the agenda for tomorrow, he tells suits that the jury is tired and to wrap this case up.  Then they start nitpicking every question on the juror questionnaire. Of course it’s like Congress, each side will not agree to what the other side wants.

A young looking reporter from the Dallas Observer (corrected from earlier version)  was in the courtroom Monday and will be back Tuesday. I gave her the Mesh News Desk address.

Expect closing argument to commence this week. #

Editor’s Note * Thank you Cathy!!  Stand by for more from the MND court watchers.  Cathy will not be there Wednesday and if anyone can attend the Dallas trial it would be helpful when the jury comes back if the case goes that long.  Thank you!

 

16 Comments

  1. Aaron Leigh says:

    Thank you Jane & Cathy!

  2. Annie says:

    Thank you.

  3. Carmel Berry says:

    Thanks for watching and sharing your observations. Please let LB know we are all on her side.

  4. Barbara Dykes says:

    I certainly hope they do not make any assumptions regarding health prior to Implant. We all know how we “trusted ” our doctors and J&J . I was sold on a “cutting edge” product by my OB/GYN. I used to think of J&J as wonderful baby products. Cancer causing ingredients in their baby powder changed my mind on that. Good Luck Linda Batiste!

  5. tiffany says:

    Thank you ladies!

  6. jade says:

    Establishing LB’s long list of pre-existing co-morbidities is not good for the Plaintiff’s case and the fact that LB was resistant to taking her medications shows her lack of good judgement and self-care. Also, the testimony of Dr. Brown does not directly point to damages from the polypropylene mesh. The Defense is in wide open for the “Hail Mary” pass!

  7. Evelyn says:

    Thank you Ladies for being there with LB and the up dates.. We are with you LB .. 🙂 <3 (((HUGS)))

  8. HE says:

    Thank you for taking the time to personally witness the trial for us. We are all at the edge of our seats trying to figure out how the jury will see it. I have had many “female surgeries” prior to mesh implantation. I healed after about a month for each one of them. I had no long lasting pain as a complication. No fistula’s, granulomas etc. Which I’ve heard the defense claim as a common problem following any surgery. I can tell you that I’ve never experienced anywhere near the pain that mesh causes. To say that it is helping the defense for these pre-existing conditions to exist is ludicrous. That they are the cause of her issues – incredulous. If any conclusion from this – it was a reason NOT to put the implant in. By 2011 Dr.’s should have known there were issues with mesh. And these other health issues may further complicate the issues with mesh. Instead of looking at the whole picture, Dr.’s prefer to separate systems in our bodies. A better question would be, why was she not taking her medication? Her Dr. stated that the mesh did cause the pain she is experiencing. To me the other issues may have been impacted by the mesh, but the bottom line is: MESH CAUSED PAIN! Calling her ex-boyfriend to the stand showed his own lack of integrity and the fact that he left her for sexual problems is reprehensible and make him a useless witness. That he is not ashamed to show his face in public is a value statement about the country we live in. I sincerely hope the jury can see through the smoke screen that is being put out by the defense for what it really is. A distraction from the facts. I pray Ms. Batiste gets the justice she more than deserves. Again thank you.

  9. jade says:

    I was under the impression early on in this case that LB was to appear on the witness stand. Did she? I fear that this is “another” case chosen by the Defense.

  10. Yaron says:

    Can anyone refer me to how I can get the doctors experts reports submitted by the plantfie ? And the the reports the defence experts submitted in behalf of JJ

    Tnx

  11. pam says:

    I hope this court will see the mind games that those that lying and covering up truth in this case and all of the cases. After viewing on web sites all the politicians and more that got thousands from these companies in campaigns, and secret votes for those politicians at 3:00 in the morning to pass bills for health care also look at those states where the vast majority of these cases will be held, those states that these companies employ workers . DO YOU THINK, the plaintiff’s will get a fair hearing to tell the truth of hell even those dr.’s put them through and lying? I still stand with all the millions the companies paid out to politicians and doctors to lie in records and to women. the should settle for billions in favor for those damaged and will suffer for life.

    I am not over weight, I have had high cholesterol , very high, and not once did any doctor give me meds to take it down, coughing? allergies this time of year cause sneezeing , coughing, never had copd, but one doctor could not tell the difference from pneumonia and copd, but all of this came up after mesh implant. ???

    tobacco companies settled for billions, why are attorneys especially in those states where these companies employ and courts held want to settle for a million? when they know the women have to keep having to go to doctors , surgery after surgery and still be these companies guinea pigs every time they go into a doctors office. We are damned if we go and damned if we don’t . KNOWING what doctors lie to cover for their colleagues. How long did it take for courts to laws in to gag people, so the evil cannot be exposed among those in courts, This has nothing to do with truth at all, but to put into laws to cover truth up. I have always said if the judge and jury make the decisions on people’s lives , if the attorney is not asking direct questions , that jury has every right to ask those knowing some courts are corrupt and thrown and people can get by with murder and walk out laughing because of some courts, I said some.

    that mesh did not erode because this woman smoked , how many women do not smoke and the mesh protruded out , even more than 1 place, it did not erode because she had high cholesterol , those companies lied and so did the doctors to the women, how many women don’t have high cholesterol and mesh eroded?

    the mesh eroded because it moved not fit in the first place to be put in human beings.

    How many women have ever loved a man that was a jerk, no good? some women find a good man I know , but how many men do you know , even some judges and attorneys are some that treat their wives like crap. add doctors, cons and governors , politicians and preachers and priest , I can go on. I know women too, but that too was not why her mesh eroded. We have all made bad choices. but we were point blank lied to about the mesh from doctors that pushed it for these companies and they all got rich.

    shut em down if they do not know how to to the truth. millions for settlements, ??? whose side are some of the attorneys on?they paid ,millions to politicians and doctors , and gave millions for trips , vacations, and partied , at our suffering. make it billions and then ask to settle. for what they covered up. plus time in the slammer might show them to be more truthful and not greedy to make the rich richer.

    We stand with Ms. Batiste! Let her know, she is not alone. .

    ;

  12. debc says:

    Thanks for keeping us posted… even though it’s s bit frustrating to hear how they twist things around, and that the just did not seem to be that into it at times…

  13. It is clear that J&J has an experienced corporate defense team that has access to clinical studies that were designed and supported by J&J/Ethicon to bolster the profits of their product and trained, devoted and experienced ‘expert witnesses’. The plaintiff’s attorneys are doing an excellent job of providing information to the jury that J&J/Ethicon produced and continued to market a product that was known to cause pain and chronic, non-reversable, devastating adverse events that were not disclosed to patients. The ‘discovery’ of previously undisclosed confidential internal corporate documents is very valuable to all who have been harmed by failed implanted medical devices. Get yourself a copy of the transcript!

  14. jade says:

    Actuall with all the co-morbidities LB has – TVM was the only way anyone could cure her SUI. She was NOT a candidate for a long abdominable procedure in light of her pre-existing conditions. I am actually wondering “why” LB would even be bothered by SUI with her conditions of “osteo arthritis, Chronic Pain Syndrome, diabetes, obesity, high blood pressure, diabetic neuropathy, peripheral vascular disease, gout, COPD, arthritis and shingles”. This just doesn’t make sense. LB is NOT representative of women, otherwise healthy, who were duped by the manufacturers and their doctors to have TVM. This case does NOT represent those of us who went unknowing into a surgery that would undo our lives. Thus, I ask, how can this trial truly be considered a “bellweather”?

    • Lynn says:

      Maybe I am wrong, but I read this is a state court case not a federal case. The mass tort (bellweather) cases are in federal court…..Please correct me, if I am wrong.

  15. Chelsea says:

    From my understanding, the defense gets to pick a plaintiff for bell weather trials as well as the plaintiffs lawyers. This was obviously a defense pick, along with the last one.

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