Bard Avaulta from website 200Mesh maker C.R. Bard, of Murray Hill, N.J., wants  to recoup its legal costs in preparing to defend itself in the recently dismissed Bard Avaulta Plus lawsuit filed by Linda and Ronald Rizzo.

Rizzo dismissed the case without prejudice September 13 after experiencing some problems with an expert witness. The case was dismissed 25 days before its scheduled trial date of October 8.

Mass Device reports on the incident here.

Costs and Attorneys’ Fees

Bard requested attorneys’ fees and costs “that it unnecessarily incurred in preparing this case for trial prior to Plaintiffs’ last-minute voluntary dismissal of their case.” Bard claims due to the dismissal, federal rules dictate that Bard becomes the prevailing party in this lawsuit and deserves to be awarded reasonable attorneys’ fees (Rule 54 (d) (1).

In this case Bard includes an itemized Bill of Costs totaling $14,096.42. (See the invoice below.) Bard #360 Motion for Attny fees

The Linda Rizzo case was included to be one of the bellwether cases and Bard says it spent significant resources to conduct discovery which included deposition of Plaintiffs, treating physicians and fact and expert witnesses. Attorneys for Bard have spent many hours preparing for the trial including Ms. Rizzo’s voluminous medical records (4,230 pages), according to the motion.

Lori Cohen and team outside federal court , Charleston, WV, July 8, 2013

Lori Cohen and team outside federal court , Charleston, WV, July 8, 2013

Bard complains the Plaintiffs have not provided a full explanation for the dismissal of the case. Cohen writes:

“Bard has reason to believe that Plaintiff’s dismissed Rizzo because one of their urogynecology expert witnesses failed the first-ever examination for board certification in the subspecialty of Female Pelvic Medicine and Reconstructive Surgery, the results of which were announced on August 26, 2013.”

(The subspecialty was established in 2012 and June 2013 was the first ever board certification overseen by the American Board of Medical Specialties.)

Cohen writes the plaintiffs knew the doctor might not pass the test to describe himself as a “board-certified urogynecologist.

The motion was written by Lori G. Cohen of Greenberg Traurig, LLP. Cohen is the same attorney present for the Donna Cisson trial.

H. Garrard leaving federal court Charleston WV, July 2013

H. Garrard leaving federal court Charleston WV, July 2013 

Rizzo’s attorney Henry Garrard argues  in Bard #361 Response to Fee Request, filed October 11, that Bard is not the prevailing party under Rule 54(d), “a voluntary dismissal with prejudice does not confer prevailing party status on the other party.”

Garrard cites the fact that the Queen case was settled by Bard on the eve of the proceedings and the plaintiffs did not seek fees.

Therefore it is both self-congratulatory and unfair for Bard to contend that it should be awarded its costs as the “prevailing party” when it has achieved the very same outcome as it did voluntarily in the immediately preceding bellwether case.”

According to her complaint filed in December, 2009, Rizzo was implanted with the Bard Avaulta Plus Anterior and Posterior BioSynthetic Support System by Dr. Henry Kaminski at Community Memorial Hospital in Menomonee Falls, Wisconsin to treat pelvic organ prolapse.

Her lawsuit, filed December 29, 2009 is a multicount action for negligence, design defect, manufacturing defect, a failure to warn, breach of express warranty, breach of implied warranty, loss of consortium for husband Ronald, and punitive damages.

Bill of Costs Linda Rizzo case:

Bard bill of costs in Rizzo case  600