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.
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.
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.
The 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.#