aaBard Avaulta mesh miklos and mooreMesh maker C.R. Bard had challenged the jury award of $5.5 million for plaintiff Christine and Roy Scott in the first pelvic trial in the country in July 2012.

Now that jury decision has been upheld.  

The appellate opinion was issued by the California Court of Appeal, Fifth Appellate District in a unanimous opinion by a three judge panel. 

See the Opinion here.

The jury found Bard was negligent and awarded the Scotts $5.5 million with her surgeon, a nonparty, 40 percent at fault. The award was reduced accordingly. Scott was implanted with an Avaulta Plus mesh kit made by C.R. Bard.

Bard has the option to file a petition for review by the California Supreme Court, however there needs to be important legal issues that conflict in lower court rulings to merit a higher court review.

In its appeal, Bard argued that three negligence theories were erroneous in the matter of law and there was not enough substantial evidence to support the verdict. The Scotts argue the apportionment of part of the award to Scott’s surgeon was based on incorrect jury instructions.

The Opinion, granted November 19, affirms that Bard was not denied a fair trial and the Scotts had fair jury instructions. See the coverage in a Mesh News Desk story here.

Despite finding no manufacturing defect or failure to warn, the verdict was upheld on the negligence theory.  The trial appeared to be a wild one, with the plaintiff’s lawyer at one point going off on the judge, telling him Bard “owned the courthouse” and asking if he could please just have “a tiny bit of justice.”  There were also some colorful twitter posts by a juror during the trial (monitored by Bard) which led to Bard arguing for juror misconduct.

Another interesting issue was jury instructions.  The defendant doctor was an empty chair at trial.  The jury, amazingly, was not instructed on the standard of care for a physician, and in another odd twist, came back with a finding that the doctor’s negligence was not a substantial factor in plaintiff’s injuries and yet found him 40% at fault.  Nonetheless, the plaintiff was awarded $3.6 million in damages.

Background

CS from the Bakersfield Californian

CS from the Bakersfield Californian

Christine Scott (CS) was implanted with a Bard Avaulta mesh kit by her gynecologist Dr. Tillaikaransi Kannappan who had received a one day training lab on the Avaulta taught by Susan Tate, a urogynecologist.

The training consisted or a powerpoint presentation and a cadaver lab.

Dr. Kannappan believed complications could be minimal and the Avaulta was safe to use.  She was not told Avaulta should not be used in women who are sexually active or for mild prolapse.

Scott had incontinence while participating in sports and mild pelvic prolapse of the bladder and rectum.   As a treatment, in January 2008 Dr. Kannappan implanted a mesh sling and two Avaulta Plus mesh kits one for anterior one for posterior.  Dr. Kannappan says she did not read the instructions for use on the Avaulta plus but did watch a DVD on the surgical technique about a week before Scott’s surgery.

What followed were eight surgeries to resolve urination blockage and mesh erosion into the rectum. CS has pain, nerve damage and incontinence. The complaint included negligence, strict product liability, negligent misrepresentation and fraud against Bard as well as Dr. Kannappan and another surgeon Dr. Klis. That latter action was dismissed.

One expert in the case, Dr. Donald Ostergard testified that the surgical technique used in Scott’s surgery and the one day Avaulta training did not meet the requisite standard of care expected of a practicing physician in ob-gyn in Bakersfield, California.

The jury awarded CS $5 million in damages and her husband $500,000 for loss of consortium. Of that award Dr. Kannappan was assigned $3.31 million for CS and $300,000 for her husband, Roy.

During the trial proceedings the judge considered filing contempt charges against Eugene Lorenz for comments made in open court out of the earshot of the jury (Page 26). Page 28 contains statements made by Juror 14 before the trial was concluded on Twitter.

Bard did not bring this issue to the Courts attention during the trial so forgoes seeking a new trial on the ground of juror impropriety.     #