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Cisson $2 million Compensatory and Punitive Verdict against C.R. Bard Upheld by Appellate Court

judge mallet 200Mesh News Desk, January 18, 2016 ~ The pelvic mesh trial against manufacturer C.R. Bard three years ago, was the first bellwether case to be held in the newly formed multidistrict litigation in Charleston, West Virginia.

Right out of the gate, Donna Cisson’s attorney, Henry Garrard, presented to the jury the Material Safety Data Sheet that accompanied the raw polypropylene resin used to make her Avaulta Plus transvaginal mesh.

Garrard showed jurors company emails exchanged between high ranking executives, that they would form a dummy company so the supplies of the resin would not be disrupted.  That’s because the supplier, Chevron Phillips, included a warning on the MSDS, not to use the resin to make implantable medical devices and would not sell to Bard had it known that was exactly what C.R. Bard would do.

See background stories by MND here ,  here and here.

Henry Garrard III

Henry Garrard III

That was how the trial of Donna Cisson v. C.R. Bard began in  July 2013.

Donna, Dan Cisson leave court July 8, 2013

Donna, Dan Cisson leave court July 8, 2013

On August 15, 2013, jurors awarded Ms. Cisson $250,000 in compensatory damages  and $1,750.000 in punitive damages to send Bard a message.  The jury included damages for design defect and failure to warn claims. The jury returned a verdict for Bard on the consortium claim.

The company immediately appealed.

One year ago, Judge  Joseph Goodwin, who is overseeing the mesh trials, denied Bard’s request for a new trial.  See background story on MND here. 

A federal appeals court on Thursday, January 14, upheld the $2 million verdict. The 41-page decision is written by Judge Roger L. Gregory.

It puts her one step closer to finally resolving her lawsuit against the mesh maker.

BACKGROUND

Ms. Cisson filed a lawsuit in March 2011 in the Northern District of Georgia. She had received a Bard Avaulta Plus pelvic mesh on May 6, 2009 to address prolapse and incontinence. Dr. Brian Raybon performed the surgery.  He had been a preceptor or teacher/consultant to Bard.  Eventually Dr John Miklos explanted most of the Avaulta.

Testimony was presented that the pores of Avaulta are too small and the mesh shrank after it was implanted.  What resulted was a rigid scar plate. The mesh was attacked by the patient’s body causing inflammation of the tissue and degradation of the mesh, and causing Ms. Cisson’s permanent injuries.

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

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

THE APPEAL

The 4th U.S. Circuit Court of Appeals rejected arguments presented in the appeal by attorneys for Greenberg Traurig (Lori Cohen) that represented Bard.

The company sought to have a reduction of the $1.75 million punitive damage or a new trial.

The company argued that it complied with the Food and Drug Administration’s 510(k) process for approval (implying safety) and that information should have been allowed to be presented to the jury. The U.S. Chamber of Commerce supported that argument a friend of the court.

Readers of Mesh News Desk understand that the FDA’s 510(k) approval is a “clearance to sell” and does not require the company meet the higher standards of premarket approval (PMA) required of drugs.

Roger Gregory, 4th District Court of Appeals

Roger Gregory, 4th District Court of Appeals

The appellate court agreed with Cisson:”…. [w]hile some courts have found evidence of compliance with the 510(k) equivalence procedure admissible in product liability cases, the clear weight of persuasive and controlling authority favors a finding that the 510(k) procedure is of little or no evidentiary value.” Thus, the Court concluded, “it is clear that the court did not abuse its discretion by excluding Bard’s evidence of 510(k) clearance.”

Bard Marlex Mesh MSDS

Bard Marlex Mesh MSDS

 

Bard also challenged the decision to include the Material Safety Data Sheet (MSDS) as hearsay. The three-judge appellate panel decided the Material Safety Data Sheet was not prejudicial to the defendant company.

Judge Joseph Goodwin

Judge Joseph Goodwin

Judge Goodwin one year ago had called creating the dummy company evidence of  “This secretive conduct in an effort to sidestep the MSDS warnings suggests reprehensible conduct, weighing against remittitur.”

 

Also part of the appeal, Bard said that under Georgia law, causation needs to be demonstrated by expert testimony stated to a “reasonable degree of medical probability” and that jurors were presented with insufficient evidence of causation. Punitive damages were excessive and in violation of the Due Process Clause, said the mesh maker. The appeals court did not agree.

Cisson’s attorneys asked the appeals panel to rule that the Georgia state law (Georgia Tort Reform Act of 1987) that splits the punitive damages is unconstitutional.  However, the appellate court said she had provided no basis to find the state’s actions unconstitutional.

The state of Georgia will receive 75% of the punitive award of $1,750,000. Ms. Cisson receives the remainder.  #

 

LEARN MORE:

Here is a link to  Thursday’s opinion by the the U.S. Court of Appeals for the Fourth Circuit

Cisson v. C.R. Bard, Inc., No. 15-1102 (4th Cir. Jan. 14, 2016). 

Cisson is represented by Anthony J. Majestro of Powell & Majestro PLLC, Allison Van Laningham of Turning Point Litigation and Henry G. Garrard III and Josh B. Wages of Blasinggame Burch Garrard & Ashley PC.  

Bard is represented by Lori G. Cohen, Brigid F. Cech Samole, Elliot H. Scherker Jay, Andrew Yagoda and Sean Jessee of Greenberg Traurig LLP.

MND, January 2016, Cisson $2 Million Verdict Will Stand

http://meshmedicaldevicenewsdesk.com/cisson-2-million-verdict-will-stand

 

Law 360 on the appeal

http://www.law360.com/articles/663090/4th-circ-told-to-uphold-2m-bard-mesh-bellwether-verdict

Legal Examiner on Cisson decision

http://www.legalexaminer.com/medical-devices-implants/victims-of-transvaginal-mesh-devices-finally-get-the-justice-they-deserve/

Friend of Bard, Cook Medical

http://www.chamberlitigation.com/sites/default/files/cases/files/2015/Cook,%20et%20al.%20Amicus%20Brief%20–%20Cisson%20v.%20C.R.%20Bard%20(Fourth%20Circuit).pdf

Friend of Bard, U.S. Chamber of Commerce

http://www.chamberlitigation.com/sites/default/files/cases/files/2015/U.S.%20Chamber%20and%20PLAC%20Amicus%20Brief%20–%20Cisson%20v.%20C.R.%20Bard%20(Fourth%20Circuit).pdf

 

 

53 Comments

  1. anonymous says:

    Fantastic finally Justice

  2. Stopmeshimplants says:

    Awesome news! Thank you, Jane.

  3. anon says:

    So basically, she gets nothing as the, State of Georgia, gets most of it, and the attorney still has to be paid. Why does the, State of Georgia, get so much? What is the point of filing a wrongful lawsuit so you can live, eat, pay the bills and get medical help if the state takes all of your winnings? I don’t understand.

    • Jane Akre says:

      Its part of tort reform. Next time you hear people call lawyers “ambulance chasers” (you may have said this yourself) it’s part of a campaign to hurt trial attorneys by hurting your chances to be successful at trial. That’s the result. You the average citizen loose. Please note, its the US Chamber of Commerce that writes a “friends” brief for Bard…. Chamber is populated by Big Tobacco, Big Asbestos, Big Insurance, Big Chemical etc…. all of the industries trial attorneys go after.

      By my calculations she still received $250,000 plus 25% of 1.75 million which is roughly $437,500 ( minus lawyer fees etc)…..

      • K says:

        She will get about $343,750.00 out of 2 million. That’s taking out 50% for attorney fees and what the state will get of her punitive damages. Very sad!

        • Bejah Blue says:

          The system benefits financially from the pain of its people and that benefit is grossly disproportionate. From every point in space and time we are used. We may live in the land of the free and I am glad we do but that freedom is relative and we must always remember that. I can still see myself in the 6th grade saying the Pledge of Alliegance to the Amerian flag every morning, my heart swelling with pride but I really did not understand what I was doing and I have no memory of anyone explaining what I was doing or why. I think this needs to change. To really protect our Constitution and Bill of Rights we need to understand from the beginning what we are pleging our allegiance to in order to grow to be really good citizens who protect this nation, and are not just workers who blindly go to and from their jobs, never question authority or our employers, vote, consume day after day. If we made modifications to create more aware citizens perhaps Johnson & Johnson would have been a very different organization and I name only them as they took the lead in this mesh madness. But as we can see from television this kind of thing is rampant in corporate America. Big changes need to be made in the way we do business, beginning with bringing labor back to this country and breaking up monopolistic organizations, putting a cap on senior officers of organizations bonuses and if they cry “government interference” that is too bad, Clearly they can not manage themselves ethically. Government should protect the people and monitor corporations not the other way around. This changing mesh to cat III…was it throwing a bone at the problem because of pressure from critics and exposure? The FDA needs to do much more including cleaning out management which in the case of devices is hopelessly corrupt.

          Bejah

      • Still Standing says:

        I am wondering if her attorney receives 40% of the 25% punitive damages as well.. If so she will have around $400,000 but her court costs could be significant since it went to appeal and she will have to pay federal income tax on the punitive damage amount. sounds like a lot of money until you put pencil and paper to it.

  4. anon says:

    The State of Georgia won today.

    • Bejah Blue says:

      If I remember correctly Georgia is one of those states that takes 75% of punitive damage awards from victims. Even 40% would be shameful. They do it because they can get away with it. This idea that citizens are filing suits and winning large awards inappropriately is nonsense..this reasoning is a smokescreen that allows states to confiscate the awards that people deserve and that are appropriate considering the crimes perpetuated against them. Consider for a moment the “right” of government to confiscate private property under Eminent Domaine. It is used with great regularity to take the property of others, of private citizens simply to make money. It has happened to friends of mine twice. When ever you buy property that is not some little lot in a planned development you risk being victimized by this and they do not give you what your land is worth. I am sure we all know of stories like this. We do need to take back our government but I am no “tea party” person, whatever that it. In this election I pray we all vote because it is the only real way we can assure change. I think I mentioned once that in the last general election under 10% of the people voted!!!! I was one. I thought it did not matter. I thought it was hopeless. I have changed my mind. I think it is very important no matter what happens. The stakes have never been higher. If you want to stop the brutality of BIG MEDICINE then vote. Remember the expression, “Be the change you want to see in the world”.

      Bejah

  5. anon says:

    Henry Garrard III, congratulations sir. Outstanding job. Outstanding attorney.

  6. anon says:

    thank you Judge Gregory. Merci-

  7. anon says:

    Chevron Phillips ChemicalPolypropylene

    Print

    Polypropylene

    Phillips Sumika Polypropylene Company (PSPC), formerly a general partnership between Chevron Phillips Chemical and Sumika Polymers America Corporation, has permanently shut down its manufacturing facilities and is no longer involved in the production, sale or marketing of polypropylene. 

    Chevron Phillips Chemical remains committed to the polypropylene business and its network of marketing affiliates are marketing Marlex® polypropylene produced by the Saudi Polymers Company (SPCo) joint venture. SPCo is a limited liability company owned by Arabian Chevron Phillips Petrochemical Company Limited and National Petrochemical Company (Petrochem).

    Information concerning the polypropylene produced by Saudi Polymers Company as well as contact information can be found on their website at http://www.saudipolymers.com

    Many of the polypropylene automotive resins and compounds previously sold by PSPC will continue to be supplied for the North American region by the newly formed Sumika Polymers North America (SPNA). For more information on SPNA products, please call (770) 227-6400.

    Thank you for your past business!

  8. anon says:

    You knew it Chevron Phillips!!!! You knew it could hurt, kill, maim, and injure if used in the human body! Why did you stay silent if you KNEW it was being used in women?

    Why no date on your website on when you chose to close the Chevron Phillips ChemicalPolypropylene Division?

    If the mfg stated not to use it in humans, and the pharma companies did anyway, where is their defense?!

  9. Joanne says:

    Any word on the settlement on American Medical Suppliies ?

    And how much very one getting….

  10. Nanny Bug says:

    This is so sad for this family . I agree ladies. Only the State of Georgia will benefit from this poor woman’s suffering & her families & believe me me this is a family struggle !!! Jane or Aaron just how big is J & J TVT implant ? How rare is it to have two of them & why two or do you know ?

    • Bejah Blue says:

      Dear Nanny, It is hard but we must in the end consider the overarching impact of every bit of good news in this war. It is not ultimately about any one of us but rather it is about addressing a horrific injustice to humanity and working on that must be our ultimate goal. None of us are likely to see appropriate compensation and I do not think we would even be able articulate what that would be. Only GOD could create that kind of compensation. And that is why we must remind ourselves to let GOD handle it…we must do what we can, HE helps those who help themselves, but there are things we can not address and that brings us dear Nannybug to the matter of faith. I do not know what else to say to try to comfort you. I believe the FATHER will comfort this family in HIS way.

      Bejah

  11. mary says:

    so glad some justice done thank you Jane for the info… will be glad when all gets there justice mary

  12. janet says:

    I am happy that just maybe will all see a great and wonderful outcome for ours also.

    These companies have lied,cheated ,and took our lives away.

    Jane, Thank You so much for standing up for us and over seeing these battles

    God, has sent has sent us an angel you are a true blessing

    And I will keep praying for all of us that we get what we need to keep fighting the Medical battle that we all have

    now and in the future our lives have changed forever because of these manufactures

  13. Anna says:

    Nanny, I don’t know why she needed two, but I could tell you, that I have two, only because, I was told that the first one would be removed to place a second one, apparently the doctor must have found it impossible to remove, sadly I found that out reading my operative report which had no mentioned of a removal. Although, my body was already telling me that something was horribly wrong. Now I just happen to be the lucky two mesh 100.000 women contestant with this despicable pharmaceutical company who cares little about our pain, and suffering . It is so sad how they went from doctor to doctor explaining their great new product. My question is why din’t doctors found out what would happen with adverse reactions? Not only are they stalling on the judiciary side, rescheduling case, after case with the request of this pharmaceutical companies. We also, have to deal with a bunch of doctors who have no idea how care for our issues.

    • Janet says:

      I have 2 meshes.not because 1 would be removed

      They took my cervix so the obtryx sling

      Then I have another by the colon

      I have had both removed at the same time with 2nd surgery

      First surgery was to try and stop the bleeding and to look how to remove. .I will be having another surgery to remove the band’s and then graph the area

  14. Debra says:

    Why should the state get money they are not the one hurt by the mesh i think all the money should go to the ones injured by the mesh

  15. K says:

    I wonder if the jury knows before making the decision how much the state gets of the punitive damages.

    • Advocate says:

      They have no idea about division of monies, unless they happened to be interested in tort law news, for some reason. The groups who support tort reform will tell you the purpose for pushing these laws forward, is to stop frivolous lawsuits. They want you to believe that attorneys, are simply ambulance chasers, taking any kind of situation to court for a paycheck. There have been more than a few women here, make those accusations.

      The same applies to laws like, loser pay proposals. Imagine that you go to trail on your mesh case and some jury decides against you. Now you have to pay the costs incurred by the mesh manufacturer to defend themselves. That would make you stop and think about trial in most instances. At least within the MDL, format that doesn’t apply.

      • native says:

        Just file bankruptcy fuk it you are already fuked so make it where they don’t get s*** if you loose

        • mary says:

          Hello, i was wondering if any body ever hear’s from there lawyer are do they call them i am thinking i have a good lawyer but don’t hear from them very often i am in SC and they are in texas and Denver i have had 5 surgeries with complications just wondering also don’t think you can mention there names….Mary

          • Jane Akre says:

            Mary- Eventually they will want 40% from whatever you recover. Please have your questions in line and get someone to be responsive to you! Remind them you are paying them someday and they need to be responsive and respectful of your needs as a client! just my opinion.

          • Bejah Blue says:

            Jane, You lost me…where do you get 40%? Did she mention 40%? Many of us have agreements that specify differing amounts. With regard to awards, it is my understanding that of the percentage that states take which is variable, 25% of that goes to plaintiffs counsel. Is that correct? If so then plaintiff counsel collects from us per agreement with them and they also collect from punative damage award. Is my understanding correct?

            Bejah

          • Jane Akre says:

            Most of the agreements are for 40% from what I’ve heard. Georgia has a punitive damage take of 75%…. that was created under tort reform to discourage litigation it appears. Not all states have split-recovery. Here is something from your tort reformers who like to call lawyers ambulance chasers, careful what you fall for. Citizens are the ultimate victim!

            http://www.atra.org/issues/punitive-damages-reform

            here is another article by a law firm that sums it up
            http://www.fwlaw.com/news/268-splitting-punitive-damages-state

          • Bejah Blue says:

            OK, So you are referring to 40% where punative damage award is concerned. If some states take 75% don’t you think that the others are going to work to join that club?

            BTW I do not believe that Tort reform was intended to address excessive awards to citizens. I think the intent was to fill the coffers of governments to fund administrative OH = fat cat salaries.

            Lottery funds were supposed to help fund public schools. I see no improvement in public schools.

            Bejah

          • Jane Akre says:

            No, the 40% refers to the compensatory award both that and punitive. That is generally what folks signed up for. Check your contract with your law firm. it will be in the fine print. Tort reform twas intended to hurt trial lawyers ability to do their jobs… not surprisingly it was launched by Big Tobacco, Bis Asbestos, Big Chemical companies, the very ones the focus of personal injury trials.

          • anonymous says:

            Does anyone know where I can get a loan fairly good sized one well I’m on Social Security disability I live in an abusive situation and I can’t take it anymore my husband is told me he doesn’t want to take care of a cripple and I need to find some place to live and move away from him I don’t have my settlement yet maybe I never will let it go on like this all I can do is cry.

          • Janet says:

            I have to call mine, I never hear from them if I do not call.

            I talked to them today and Boston scientific will nit settle

            They are going to trial. . They also stated we will only receive about 50thousand r less when they do settle after trials

            They told me that any woman that won through these trials are not seeing any of the money they are putting appeals on it that could take another 5 years plus

    • Bejah Blue says:

      Jane, My contract with my counsel allocates much less than 40% to them, FYI. If our people expect 40% then they are going to be less likely to negotiate for less and they should negotiate, not just accept 40% or any other amount. Women specially need to learn to negotiate better. You can negotiate just about anything but you have to ask.

      Bejah

  16. Debbie E. says:

    I am wondering if her lawyers known the law about the % ??? If so, why in the world would they have the trial in that state…. Also, how would “we” be able to see what states have this law, and do we have the right to inform our lawyers we DO NOT want to go to court there?

    Congrats to the law firm and Ms. Cisson….. it was a long road for you, and you deserve it.

  17. native says:

    What do you all do for your husbands since you all cant have sex what do you do to keep your husband

    • Bejah Blue says:

      My understanding is that marriage is a contract, a partnership that is based on a lot of things, and somewhere on that list is sex but for most of us it is NOT and should not be at the top. If it is I do not think that is a good marriage nor does it represent what the spirit of marriage is. You should not have to worry about “keeping” your husband, your best friend, your life partner, your business associate and so on.

      Bejah

      • Still Standing says:

        The only people who can determine what is a good marriage is the two people involved in it. Sex is an important ingredient in a marriage, it creates trust and fosters communication. The main issues arise when there is an unequal desire for sex. One partner wants it, the other doesnt. Our situation is more difficult because while we may want it, we either cant or go ahead inspite of enormous pain to “keep” partners “happy. Marriage does begin with a contract, but it is so much more than a contractual or transactional relationship. Contracts generally specify what each partner will bring to the relationship, such as a 50-50 split of chores which will equal 100%. In reality, though, we must each give 100%. Keep in mind, however, that 100% effort we can find is different everyday. Most of us know that we will NEVER be the sexual woman we were before mesh and beat ourselves up for that. We then do not value ourselves as a good partner, parent, employee, etc. because we are “damaged”.. We feel betrayed, unloved and unworthy. We push our partners away because we feel that no one could love our damaged bodies and souls. That is an entirely normal way to react…it is not a healthy way to react, but is a common behevior pattern.

        I have been married for more than 40 years and while I am a counselor, I still fall into this pushing away pattern. what has hurt my husband is the fact that Imdont want to be intimate at all, even without sex. I have not been able to mentally unpair my sexual desire with the unending pain…I dont even want to fool around because of the strong negative emotions toward my female anatomy. I feel like my body has turned traitor on me. …Now, i want to think through the rest of my post and it is getting rather late, but Imhope you know, native, that other women struggle with this issue of sex and sexutlity after mesh. I know there are others who can join this conversation, one of the most difficult one to have, so maybe we can gather some wisdom treasures from each other. Its hard. Just very very hard.

    • Janet says:

      I guess I am lucky in that

      I have been divorced since 93

      Playing single mommy with no help

      Working 2 jobs sometimes 3

      Then surgery messed my world up

      Lost everything my dreams of having a life was over to much pain and still trying to raise a child lost home could not work

      Now can only work about 5 hours a day no more if I do the pain is much greater. .SAD..there is no future

    • Bejah Blue says:

      Sex is not what makes a good marriage and I find this line of questioning very sad. If husbands desert their wives because of this then the women are better off without them and may find a better husband tomorrow. Living alone has many advantages also. I would rather be alone than be with such a faithless man.

      Bejah

  18. Still Standing says:

    This is for anonymous. Here is the information for the national abuse hotline. Please call them and they can give you so much material and emotional support. They can direct you to housing resources in your area. I dont know where that is, but they will be able to guide you. Please, be safe and reach out for support. You dont need this on your plate and im so sorry you are having to deal with this.

    http://www.thehotline.org/

  19. janet says:

    I Spk with my attorney regarding this case and a few others going on

    They stated that an appeal was put on these cases and knowone will be receiving that kind of money

    And these appeals can take up to 5 yrs are more

    And our cases are know where to be settled and will not for the next 5 to 7 years and we are looking at anything between 5 thousand to 50thousand if we are lucky. . Even though we will be seeking medical help the rest of our lifes this is sad

  20. native says:

    No one here even mentions their Husbands Health issues you all are sad women I ask these questions cause i came here to see about whats up for my wife and she says you all are fouls because of all the complaining its all Negative energy Try talking positive things make wonderful dreams and speak about them Quit crying We are Native American we don’t act like you do Only Speak Positive things I am not coming here to talk again Start talking good things

    • Still Standing says:

      Dear native. I find myself pretty shocked at the tone of your posts. While you preach to say and focus only on positive things, your posts are full of passive/aggression and negativity. Surely you can find ways to support your wife without marginalizing the emotional needs of other victims. If you want ro go back and read past threads, you will find out that we HAVE discussed husbands/partners at times. Obviously, this discussion is not one the WOMEN who suffer need to have at this time. While I understand your concern for your wife, you do not have the right to throw out phrases ” if you had a man to take care of you….ad nauseum. However, maybe you can channel your energy into opening up a site such as Jane’s for men who’s wives/partners suffer from mesh. I can hear in your words how empathetic you are….truly, just kidding.

      • Jane Akre says:

        I will monitor more closely. I’ve already omitted some comments that were either a) directed at someone or b) used profanity. Please keep this site civil if you want to continue to post. Thank you.

  21. Still Standing says:

    If you have already signed a legal agreement with your law firm, you have agreed to their rate. They arent going to go back and renegotiate your amount. It has to be a firm wide policy on their rates. Otherwise,it would be difficult to manage

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