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Boston Scientific Denied New Trial in $100 Million Barba Case, Jury Award Reduced

Advantage Fit sling

Advantage Fit sling

MND, October 12, 2015 ~ It was last May when the highest jury award in mesh litigation was issued so far – $100 million to Deborah Barba and her husband. 

Ms. Barba had been implanted with Boston Scientific’s Pinnacle Pelvic Floor Repair Kit as well as an Advantage Fit mid-urethral sling system.

See the Mesh New Desk story on the verdict here.

On October 9, Delaware Judge Mary M. Johnston was asked to grant a Defense motion for a new trial and to set aside the jury decision.

The requests were denied.judge johnstone

What Judge Johnston did grant was a reduction in the $75 million in punitive damages saying the amount shocked the court’s conscience and sense of justice.”

Punitive damages were reduced to $7.5 million while Judge Johnston reduced the compensatory damages to $2.5 million bringing the total jury award to $10 million.  Boston Scientific filed an appeal after the original verdict. [This story has been updated and corrected.]

See the jury questionnaire form here

See the Judge’s decision here

Judge Johnston said the Delaware jury was attentive and diligent during the two-week trial which featured the testimony of 15 experts.

BACKGROUND

The 51-year-old from Newark, Delaware, Ms. Barba sued manufacturer Boston Scientific for her permanent and serious injuries caused by the company’s Advantage Fit and Pinnacle transvaginal meshes.  She was implanted in 2009 and has suffered significant complications and endured two surgeries that did not fully remove the devices.

bostonThe jury found Boston Scientific was negligent in its design and manufacture of the Pinnacle and Advantage Fit devices and that the warnings were insufficient to unsuspecting doctors and their patients.

The Advantage Fit remains on the market. Pinnacle was voluntarily recalled May 2011, three years after it was launched, after a growing body of adverse events or complications were coming in.

That voluntary recall is not something the jury is not allowed to hear in this case as both sides have agreed to motions to limit the scope of the trial. See background story, The Problem with Polypropylene.

In asking for a new trial, Boston Scientific claimed a “failure to warn” claim is barred by the learned intermediary defense. In other words, it is the doctor whose job it is to warned a patient since he or she is the “learned intermediary.”

Boston Scientific also claimed there was no evidence presented at trial that the company departed from manufacturing specifics.  The Plaintiff failed to identify a safer alternative, the company claimed. These claims were denied.

Massachusetts law prohibits punitive damages in the absence of wrongful death or special statutory provisions, Boston Scientific claims. The case should have been tried in Massachusetts because that’s where the company is based.

The case is Deborah Barba v. Boston Scientific Corporation, Superior Court of the State of Delaware in and for New Castle County, C.A. No. N11C-08-050 MMJ.#

49 Comments

  1. anonymous says:

    Fantastic!!!!!

  2. so much lost says:

    This is just plain sorry on the part of this judge. “shocked the court’s conscience and sense of justice.” IS SHE FOR REAL ? What should be the REAL shock to the court’s conscience and the REAL sense of JUSTICE is letting the punishment handed down by a jury of our peers who clearly see the absolute travesty of this whole God forsaken mess and the mutilation without remorse that these companies are doing. ARE YOU KIDDING ME ? THE COURT’S CONSCIENCE !!!! WHERE IS THE JUSTICE IN THIS MOVE? WHERE IS THE JUSTICE FOR THIS VICTIM??

    • Jane Akre says:

      Shock is a good word for Plaintiffs to use….. absolutely!!!

    • Greg Vign says:

      This is a big win. The Supreme Court wouldn’t allow punitives to be more than single digit times compensatory damages. 10 million should get their attention considering the number of destroyed women waiting.

      • Bejah Blue says:

        Dear Dr., Thank you for a little hopeful news, a broader perspective. It helps, a little. If this leads back to “TORT reform” though, and that grand deception, I for one would remain pretty upset.

        Bejah

    • karen says:

      Most of the judgees either have investment with these companies or get payed under the table . I had a issue at my last job job instead of my union giving me back pay they stole it . Told me just go back to work . My union was horrible.

  3. kitty says:

    Does that mean that appeal is denied?

  4. Crucita says:

    Ms.Are. thank you very much for keeping all women informed on all this that matters to all of us, do you happen to have a list of upcoming trials in texas .

  5. Anonymous says:

    Looks like one bite of the Apple one day in court.

  6. K says:

    Thank you, Jane! It’s so cruel how the manufacturers are dragging this out when the products have been found defective over and over again by a jury. Cold hearted people who can’t admit they are wrong!

    • Jane Akre says:

      Correction $100 million reduced to ten million….. I wonder why we have a jury system if these things can be overturned by the judge…. the court was shocked! So are the people who were implanted!!

      • Bejah Blue says:

        Permit me to guess as I am in rare form this evening….the jury system is in place basically to pacify the populace, the weary and hungry masses longing to be free, you remember them?

        Religion is not the only opiate of the masses, they (“We, the people”) also believe in the integrity of a legal system that continues to fail them.

        They are the same poor fools who huddle together to tread the cold and turbulent waters of the brave new world of medical insurance where if you are not insured you may as well be dead and yet HMO’s, the only option for many, seem to be also dead in the water. Is MediCAL (In CA) also over? I do not know. This later population whose options for medical coverage are limited tend to be retired and over age 55, perhaps disabled, female and therefore are of little use to the state. They are consumers of resources and medical care, not goods produced and so are expendable, the perfect candidates for experimentation with polypropelene mesh.

        Bejah

    • Greg Vign says:

      These are corporations. The only way to get justice is to make them pay and the only way that can happen is for the catastrophically to get the care they need to avoid ‘Dallas’ situation.

      • Bejah Blue says:

        I believe the good doctor forgot to say “catastrophically injured” leaving out the word “injured” which should be stated even though it is generally understood.

        Bejah

        PS That’s my cute little OCD acting up again 🙂

  7. Kathy says:

    I’m shocked the FDA permitted a fish hook to be place into my Oburator Muscle. I am not shocked at 100 million dollar verdict.

  8. Nanny Bug says:

    Dear Jane , I suppose it’s better than nothing darling. Some ladies have simply settled for under $40 to $50,000.00 . Do you know who the 200 ladies with J& J mesh are that judge Goodwin has requested the courts to prepare for trial by Feb.2016? If you don’t know how can we find out the case list ? Does is mean anything if your atty. sends you an urgent respond imediately question & answer about insurance , bills & such after suit was filed in 2012 ?

    • Jane Akre says:

      You can keep up with Judge Goodwin’s rulings. Go to the So District of WV. Go to your mesh manufacturer. Go to Orders…. there you may find the list and whatever Judge Goodwin has ruled on.

    • Lana Keeton says:

      Answer your attorney right away as they are under orders from Judge Goodwin to get 200 cases ready in the next wave. This pushes the companies to re-think their position as to settlements to all.

      • kitty says:

        Hi Lana. Do all 200 of the women have to show up. ?

        What if the are Incapacitated?

      • Bejah Blue says:

        Lana, If I may ask (Know you must be consumed with your own case(es) )now, what is your gut feeling about the probability of these anal retentive defendants entering into agreement for global settlement to, as they say, “put this behind them” as they have probably done countless times before?

        Perhaps too, they are, among other things, getting the plaintiff outrage worn down so acceptance of a small settlement will be more acceptable to the plaintiffs so they will hobble off and die. After all the defendants will have another wave of plaintiffs coming on stage soon enough and they will need to start the whole process over again.

        Thank you Lana,

        Bejah

      • Bejah Blue says:

        So that is 200 with another 100,000 to go and counting? Guess what FDA….the fact that there are this many cases means that this is real, that we are not making this up, that we are not just trying to get money out of the manufacturer’s and more importantly, it means that these devices are defective and dangerous and you better continue with the aborted plan to classify them as Category III (Extremely dangerous) devices immediately because this is not going away, it will only get worse. How long do you really think you can keep this out of the media, keep the American people from becoming fully aware of what is going on. If you are implicated to a greater degree than you already are this could get very bad for you, reorganization, rolling heads, and an election is coming. Advise you clean this up before then.

        Bejah

    • Bejah Blue says:

      I am happy for you NannyBug, I think. It sounds like you are part of the 200 cases and if that is not good news, at least maybe it is hopeful…pray you receive a settlement as that seems the only viable option for us. Silly me, I used to think that if you won a case in court that was the best outcome possible but now I know, oh too well, it does not mean much, at least not where bad corporate citizens are concerned.

      Thinking about the questions your attorney has presented you with, I wonder what kind of material the plaintiffs counsel is required to share with the defendant. Do we still have attorney client privilege or has that been compromised over the years. How do we know the difference between what our attorney shares with the defendants counsel and what is not shared. How do we know that if our attorney sends us questions they are not in reality attempting to refine your case as viable?

      Also, it seems like sometimes attorneys sell off cases like banks sell off mortgages. This feeling in life of being shuffled about by forces far beyond our control is very troubling. Democracy is supposed to celebrate the individual and their rights under the law and under GOD but that is not what I see happening. I feel I need to be careful about what I put in writing, what I sign and even what I say in general in life.

      At least NannyB you know that your attorneys know you exist!

      Bejah

  9. msm says:

    I am thrilled the new trial was denied. However, how could the judge justify reducing the compensatory damages to 10% of the original award? THAT is what is shocking! Did the judge think the jury had made a decimal error and she was correcting it?

    I can understand reducing the amount of punitive damages to something more reasonable. It’s not right, but that’s what they do, unfortunately, but 10%?.

    So the whole jury award was reduced by 90%. Unjust and shocking !

    • Bejah Blue says:

      My guess would be that there was a behind the scenes agreement between the mfg. and the “justice” system. When we cry out about a failure of justice they claim that we create conspiracy theories, as if it were part of the unhinging of the mind of one who is a failed human being. It is a claim made so often about women.

      Bejah

  10. Cari C says:

    I have tried to keep up with whats going on in my MDL but the courts have not posted anything since May! It’s getting really old. I email my attorney and get the exact same email in response stating “we are working hard to reach a settlement agreement”, I call BS! And the manufacturer I am against hardly ever has anything in the news except denial that they are in anyway to blame. I’ll be dead before there is ever anything done.

  11. kitty says:

    Do lobbyists work for judges as well as politicians?

  12. Bejah Blue says:

    ON NBC NEWS TONIGHT!!!!

    Did you all see NBC coverage tonight of the Bayer mfg. birth control device issue…interview with a woman claiming injury, her discovery of a blog of other women suffering same symptoms, and interview with an academic/researcher on the safety concerns about that product/”Device”?

    Please tell me why NBC covers that and not the issue of polypropelene mesh which is destroying tens of thousands of lives???

    Other more personal reporting for posterity or something….I had another CT of abdomen/Pelvis….do not even remember when last one was…pain much worse now. Results available Monday. They checked blood to see if it was safe for me to have the iodine contrast agent due to my kidney malformation….I have worried for a long time now that my kidney function may be compromised but it was OK, thank Heaven at least there is that at least. My primary care doctor met with me for over an hour Friday afternoon, staying after hours…has ordered a lot of tests, exotic bloodwork, and is referring me to Rheumatologist. I thought I should see an Endochronologist but he wants to see test results first. No one has ever ordered all these diagnostics for me since I was implanted and probably not before. I have been feeling so lost, ignored, forgotten like most of you…at least maybe now I will begin to get some answers even though there is really no hope of ever having a normal life again and I seem to be increasingly terrified of the pain, that will be the thing that drives me to suicide, the pain. I will tell you what diagnostics were ordered when I know. It will be interesting to see what this urologist says (He ordered this CT scan). I have seen so many Urologists, and feel so disappointed with them in general that I wonder if there is any value in seeing them at all, they all seem so have closed ranks and adopted same boilerplate responses and I am so sick of it. My anxiety has gotten very bad as well. The amphetimine drains away the torment, the agitation for awhile, but the Clonezapam lets me just sleep….I am just sleeping what is left of my life away, sleep to enter a place of peace, where the pain seems to be forbidden, a place away from the nightmare that is my life. Each time I wake and realize what my life has become I just want to disappear into sleep again. I can not help but wonder more each day if one might fall asleap and dream and wake one day in Heaven, having escaped the cold chains of this life, the pain, the fear of escalating pain, the fire/burning of the vulva, the burning and rawness from the constant urination, the constant tingling and aching in my legs from the neuropathy, the limping in my left leg, the muscle spasms causing me to have to be very careful how I move, the constipation, the sense of being bloated, the toll known and unknown on my psyche. The strange exhaustion as if a spell had been cast on me buy some terrible wizard. How long can we all go on with the burdens we bear? Even when the major news media does cover a story about concerns about medical devices….why are we ignored? Someone please tell me?

    Bejah

    • Bejah Blue says:

      I received the results of my recent CT scan in the mail. In general, the Radiologist states he did not find anything to explain my symptoms (Sound familiar?). What I want you all to know is that there was no mention of even the existence of the mesh. It is my understanding that he should comment on everything seen in the scan. He did not mention seeing the mesh in his report. I called immediately and he said he did not mention it (Even though it was my primary complaint to the ordering physician and to the Imaging Dept. at the hospital) because he did not see any change in it. He agreed to do an addendum to the report stating that he did see it and did not see any change in it. This is important. This is an official record. Make sure when you have imaging done of this region of the body, that the Radiologist puts in the report the existence of the mesh and his or her findings about it. I would advise going back to look at your records of radiology reports and making sure this was noted and if it was not advise you ask for an addendum after the fact. If they refuse then ask to have your personal notation about this added to your file. I am left wondering how I could be in so much pain and why it is increasing. The Urologist has ordered other tests but I wonder now what the probability is that the cause of the pain is adhesions and if and why some bodies respond to invasive surgeries with more adhesions than others. Also those who had surgery that was done robotically or partially robotically are expected to have fewer adhesions. This may support the assertion that the formation of adhesions, especially where impants are concerned, is a type of foreign body response. How is it that the FDA can get away with not making polypropelene mesh a category III device?

      Bejah

    • Billie A says:

      Our dear Bejah Blue…

      I just want you to know I follow this site and read your comments. You are sooo intelligent and all of us surviving this nightmare WITH you need YOU! You are the voice of sooo many! I’m praying for YOU today. God Almighty please show Bejah her true worth! Shelter her in your all consuming love. Grant her an inner peace no human mind has ever known. May it all come to give you glory oh lord. In Jesus name. Amen

      • Jane Akre says:

        She is a wonderful woman…. thank you for saying so!

      • Bejah Blue says:

        Thank you guys so much. This is a difficult time as I try to transition from one pain mgt. health care provider to another. My psychiatrist just called me at home. He is going to fill my muscle relaxant and sedative medications that the just dismissed pain mgt. dr. had been filling. The last time I saw him he did not even ask me if I needed those filled. BTW his male office mgr. also said that they has special permission to send scripts to pharmacies electronically even when it is a controlled substance. I said that the pharmacy indicated they are not allowed to accept electronic scripts and instead of saying they were sorry and would call the pharmacy this horrible man said (arrogantly IMHO) only that the pharmacy should know that they can accept electronic scripts from physicians in this special program. So beware of all of this kind of thing people. Thank you so much for not letting me feel quite so alone. With everything else we have to cope with are we to be harassed about even receiving pain medication?

        Bejah

  13. kitty says:

    “Do not caste me off in the time of old age–forsake me not when my strength failith”

    (Psalms)Hang in there Bejah.

  14. Deb says:

    Ladies, I too suffer from 2 mesh surgeries, and 2 defective “parts”…..facing a third surgery, facing pain daily, trying to keep sane and positive in this world of bewilderment I’ve been in since 2008. I have begun following your posts, you all are a Godsend for me; I have felt so alone with family and friends wondering why I’m so limited in activities and so restricted.

    Jane Akre…thank you, thank you, thank you for your kind words and support, very much appreciated.

    Bejah Blue…keep venting here, I hear your anguish, share your pain…thought I was losing it when my pelvic area and right hip began tingling, I also am crippled on my right pelvic/spinal/hip area with activity, and sleep is almost non-existent. Due to reading your posts tonight I no longer feel alone, no longer feel that nobody could possibly understand this day-to-day struggle. Precious lady, you hang in there…God’s got this, and He’s got you. I pray that you feel His comfort and find strength to handle the overwhelming since of frustration, my prayer is for you to find something to focus on, even if it’s to draw angels or color with beautiful crayons. Breathe deeply, let the desperation go but keep those beautiful posts coming, your perspective is needed by many of us. Thank you for being the sweet soul you are, let your light shine brighter than your pain.

    All other posters…thank you for encouragement and questions during this stressful time, praying there’s a light at the end of everybody’s tunnel….chins up!

    • Jane Akre says:

      Deb- I hope you have a doctor you have confidence in. … so man attempt mesh removals and they are unsuccessful. Let me know if your doc is on our growing list of docs in your area… …some come in word of mouth and so take that for what it’s worth.

      • Deb says:

        I had confidence in dr of second surgery, Dr. Berliner, he’s no longer in the practice, now it’s Dr. Parker-Autry. She told me upfront that she doesn’t deal with lawsuits but will take care of me as a patient. I’m not sure that my past surgeries will be addressed sufficiently, currently just being treated for UTI and not much regard for pelvic and hip pain, I tried to explain how I can’t even prepare a meal without my rt leg starting to drag and feeling crippled, having to lie down to ease the pain….next appt is not until Dec 3 and pain gets worse every day, I’ll contact her today to discuss…

        • Jane Akre says:

          She must understand nerve damage and how it can affect your leg…… please send her to this site to read more…. I wish you the best with her.

        • Bejah Blue says:

          Deb, I am going to a new OB/GYN next week. I have not been to one for at least a couple of years…that trust issue and I have felt like I should see a Urologist maybe instead. A little confusion about that….or a Urogyneologist but we do not seem to have any of those here…yet. Anyway this woman is a physician I saw a few years briefly. When I pointed out to her husband office mgr. that he processed by bill improperly he told me to get out and never come back! Turns out he is out of the picture now. I wonder why! She is very nice and was trained at Stanford Med. School and seems highly competent. She also loves horses which is always a big plus for me. It makes me feel I can trust her…hard to explain. Anyway I told her nurse all about the mesh issue. She said they will be happy to see me and to do what they can to help but she also said the same thing you were told, that she did not want to get involved in any litigation, etc. Interesting….So I guess we either accept that or stand out in the middle of the street naked with no one to “cover” us. I will try to remember to post anything interesting here. I am anxious to see what she will say when I scream when she examines me (the pain), what she will say about the constant burning, the raw vulva, the vulvodynia that appeared magically post implant, and the nerves in the pelvic theater….so much, such complexity and overlapping of symptoms. I pray she can offer me some relief.

          I wanted to mention generally something else when thinking about pulling back and looking at the terrifying new world we live in…..let us remember that the body has a profound capacity to heal itself. With everything else we are living and doing, lets take the best care of our bodies we can, good nutrition, minimize stress, try to keep pain covered, get enough sleep, look to healthy relationships and minimize interactions with those that bring us sorrow….let’s do these things to the extent we can and quietly let our bodies heal themselves to the degree that they can. Let’s not forget this amid the noise that is everything else.

          Love ya’all

          Bejah

          • Deb says:

            Thank you all for the supportive posts, I have been redirected back to my primary care physician with appointment today to see what’s going on; so I will go, being honest and open to tests, etc. I could use some prayer support, please, as I’m new to this and feeling like a hamster on a wheel right now. Jane Akre, I will suggest that doctor researched symptoms and that she review this blog to see how difficult this process is on all of us affected by defective TV mesh devices, thank you for the suggestion.

            Kind regards,

            Deb

          • Jane Akre says:

            Please do not let her minimize what you are going through.!!!

          • Deb says:

            Primary care physician diagnosis: muscle inflammation, pelformis. 2 weeks of muscle relaxers along with exercises and weight loss. My urodynamic testing is Dec 3, will try to follow instructions and go from there. Thank you for support,

            Deb

          • Still Standing says:

            A urogynecologist is still your best bet. I can’t believe there are none where you live. Try to find one,if you can. You are so right about the body’s healing capacity. There is much we can do self care wise that that can provode some modulation of pain. Please keep looking in that direction.

    • Bejah Blue says:

      Thank you Deb. We do provide a lot of comfort for each other I think, and often it is very mysterious. Sharing information is only one of the things that happens in this space which so often feels like sacred space. Sometimes I feel like maybe a part of our purpose is to share with each other and provide the comfort we do for one another on many levels.

      Some of us have family members who are able to be very supportive. others have family members that are baffled and frightened and need to be comforted themselves, and others can not cope and withdraw from us. Some of us are quite alone, but even those of us that are not alone know an aloneness that this nightmare has left us in, that can only be understood and shared with our community of mesh wounded people. We share a secret that seems to isolate us from the world in strange and often frightening ways. I do not know what I would do without this community. It is my touchstone in this world that seems more like purgatory than real life.

      I also at times call out to GOD to help and I am comforted…the feeling of experiencing another dark night of the soul leaves me for a time, a few days or a few weeks. I call out also to my “Mommy” sometimes and then again and again I find old pennies in the garden and I know it is a sign from her.

      I still, despite all of this, experience moments of doubt and fear about death and faith….even Jesus did, I remember, and is it not to comfort us…He knew and still he also knew fear and doubt. I suppose we all wonder when we allow ourselves to consider it, what will the coming days and months and years be like? When and how will my story end? It is something I did not expect to face for another 25-30 years but suddenly that buffer of time seems so porus, as if it could collapse any moment. I feel at times like I live on the brink of extinction.

      I was going to open the house for the children on Halloween but now I feel I can not, I feel too tired. Will I prepare a turkey for Thanksgiving or decorate for Christmas or will I need to pass through them quietly to minimize the sorrow they draw out. I do not know. Sometimes it helps to try to participate in the dance of life but at other times it is so hard. This season is notoriously difficult for many people even under normal circumstances, but for us, these days, I expect it can be either more of a refuge or more of a challenge. I do know this, that we all bear witness and doing so is very important but I am not certain why.

      Bejah

      • Billie Aschmeller says:

        Oh Bejah…how beautifully written my friend! I haven’t even had time to think of the coming holidays…not with surgery looming Nov 20th. Im feeling selfish right now…realizing how self centered ive become the past month. My poor baby…my daughter. She is five months pregnant and shes really not taking my illness well. I put on a happy face as long as I could…but…now is the time to face reality. Sad cruel twist of fate that she may be losing her mom while awaiting the arrival of her child. I get such joy from knowing its a girl!!! I pray god leaves me here long enough to meet my granddaughter!!! Gesthemane hour looms and I pray this cup be passed but if it be Lords will…so be it. God help us all!!! We shall lean on one another in our nightmare…in the darkest days of our lives…WE have each other watching and praying with us. Im so grateful for all of you and the perspective that only comes from one whose truly traveling my road. Im not alone. Thank you and im here for WHOEVER needs love. Let us finish our race together!!!

        • Bejah Blue says:

          Dear Billie, Thank you for your kindness. I have marked the calendar for November to remind me to pray for you and light a candle on the day of your procedure. I am certain many others will also. I am always left breathless when I see and feel the power of prayer. I wonder if we should begin to pray during these trials. Blessings,

          Bejah

  15. June says:

    All the woman that are suffering with this need to get 10 million not just individuals !!!!

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