Closing Arguments in Batiste v. Ethicon Pelvic Mesh Trial
As the case of Batiste v. Ethicon wraps up in a Dallas courtroom on Wednesday, April 2, 2014, Aaron Horton observes the proceedings. She is the daughter of a mesh-injured woman and has set up The Mesh Warrior Foundation in her honor. Thank you Aaron.
AT THIS WRITING A VERDICT IS EXPECTED AT ANY TIME.
Wednesday April 3, 2014~ by AARON HORTON
My new friend, “Cathy”
I was so grateful when I walked into the courtroom after Tuesday afternoon’s recess to see a great, big, wide smile greeting me, for that is not usually what happens when one walks into a courtroom, especially as tense as this one. The beautiful, broad smile came from “Cathy,” the lovely and spirited mesh-injured woman who came from more 300 miles away to see and support Ms. Batiste and to be involved in the making of history.
“Are you Aaron?”
“I’ve been waiting to meet you. I’m so happy to see you.”
I’m so happy to see you. How rarely I have heard these words in the last three weeks. Court is war. It takes everything out of me to sit and listen – to both sides, for what is now the third and final week of the trial.
I feel at home when I see her. We hug for a long, long time. I am happy to see her. I am happy to sit next to her. I belong here. I see another good friend and patient advocate. I wave and take my seat next to the two of them. My friend is wearing a turquoise blouse; I am wearing a blue dress, and Cathy’s sister has taken her shopping, part of the booty a brilliant cobalt, patent-leather purse. I am with my sisters. I can do this. “We can do this,” I think. Nope, I know we can.
Cathy has done an amazing job of taking notes, despite her injured status and that she’s had no friendly companion by her side. She has written two very good stories about two very hard days in court.
She says, “It’s been lonely here. I’m glad you’re here now.”
I say, “Me too,” for I also feel lonely when I am not among my sisterhood. I understand her sentiments. Cathy’s given me and all of us a gift with her presence and her capable writing keeping us all informed while I was away. It is a sacrifice for our community. I am honored and so, so grateful to her. I hope you are too.
Thank you Cathy! I have another lifelong friend. I hope one day we will all connect face-to-face. I’ve done a lot of imagining of that very moment these last weeks.
Wednesday in Court – Closing Arguments
By Wednesday morning, I am spent. But Cathy’s sacrifice has allowed me to go to bed early on Tuesday and wake up ready for battle again. This is the last battle in the full-on war of the case in total.
Court reconvenes around 11:00 a.m. – 45 minutes late. I’m not sure why. I arrive 15 minutes early for the time that is set – around 10 a.m. and the courtroom is already packed. I’ve learned that courtrooms are set-up somewhat like weddings, with the “bride” or in this case the plaintiff, Ms. Batiste on the right side (when facing the judge) and the defendant’s attorney’s on the left. There is but one seat remaining on the plaintiff’s side. Ms. Batiste is in a brilliant turquoise blue suit and skirt. I go to her and kneel, tell her I’ve missed her and that she looks beautiful. She asks if I will be there for the rest of the trial. I say, “Yes, I’m sorry I was away. I had a conference.” She smiles. I smile. We smile together, and it’s a knowing smile. I simply can’t wait to spend more time with her when I can.
Mr. Cartmell takes the stand for the plaintiff. He will have one hour to give his best summary of the relevant points in this case, and they must add up to “A Preponderance of Evidence,” the legal term which describes what the plaintiff must prove in order for the jury to find for the plaintiff. Mr. Cartmell is likeable, knowledgeable, approachable, kind – and passionate about this cause and about Ms. Batiste. This is his character I have learned over weeks at the trial, and I pray this is evident to the jury as he takes to the floor.
The judge has already gone over a lengthy and detailed document wrought with legal terminology, which each member of the jury and the alternates has received. The document is a series of about 10 questions that, based on the law, 8 of the 12 jurors must agree upon to find in favor of Ms. Batiste. The document addresses specific questions related to the following issues:
-Is the TVT-O product inherently defective in its design?
-Did Ethicon act as a reasonably prudent manufacturer by offering the TVT-O to the market in the first place? Was the marketing of the TVT-O product transparent?
-Were there safer alternatives available from Ethicon at the time that Ms. Batiste was implanted by the TVT-O product?
–Was Ms. Batiste properly informed by her doctor, Dr. Robert McNabb of Baylor Medical Center of Dallas?
(This question pertains to Ethicon’s formal IFU, “Instructions for Use” – pamphlet. The doctor is considered by the law to be the “end user” of the IFU and its target audience. The audience is NOT the patient, and the patient is NOT the end user of this document. It is Ethicon’s responsibility (or any manufacturer’s) to disclose all the risks including the duration and any risks, adverse events or possible negative outcomes of surgery, even if rare. This is colloquial called “Failure to Warn.”)
The rest of the questions mostly pertain to compensatory and punitive damages, for which there are caps, according to state law. These caps are in effect and based on Congress’s passage of tort reform in the midterm elections of 2010.
Mr. Cartmell goes through each of the questions one by one with the jury, explaining why each juror can easily and objectively find for the plaintiff, based on the preponderance of evidence, which I believe there is. If this jury doesn’t “get it,” no jury will. His presentation is easy to follow, understand and everything he says is TRUE.
Every study the defendant has used has been a paid-for study and based off of the original Ulmsten data – Dr. Ulmsten was the inventor of the mesh who was paid millions of dollars before his death – too bad he’s not available to interview. The most damaging facts which Mr. Cartmell elucidates beautifully are:
1) The TVT-O was known by Ethicon to be more dangerous than its predecessor (the TVT) as early as 2002, yet the company continued to sell it and aggressively market it for years. In fact the product is still on the market.
2) The company also had mechanically cut mesh for their TVT-O product as well as laser-cut mesh. The company had evidence that the laser-cut mesh was much safer, but yet the continued to market, sell and insert the mechanically cut TVT-O in women. Mechanically-cut TVT-O is what Ms. Batiste has.
The Defense Rebutts – Ethicon’s Hour in the Spotlight
Mr. Gage takes to the floor. The attorney for Ethicon, a division of Johnson & Johnson, says that he’s going to focus on the research, because he’s just a “research guy.” In my opinion, he talks down to the jury, often saying things like, “Now this is a big word, so I don’t expect you to know it- let me explain what it means” or “You are probably overwhelmed by all this technical information and not family with all these long words.”
Mr. Gage uses study after study (all produced by Ethicon-paid employees) and describes their payments as the company’s investment in “training.” Gage says, “Wouldn’t you want a reasonable prudent company to train doctors, like Dr. Anhalt to train other doctors? These payments may look like pay-offs, but they are training expenses. We have to pay doctors, spending millions and millions of doctors to teach other doctors how to safely use our products.”
It feels almost like a sympathetic plea. Many of the defense’s statements are similar. Study after study, and I notice at least three of the jurors are asleep during Mr. Gage’s presentation. He conflates the TVT and TVT-O. To me it’s an obvious slight of hand, an attempt to confuse the jury on the product in question in this case – ONLY the TVT-O, which is mechanically cut and has caused Ms. Batiste permanent injury.
Mr. Gage never mentions the conflicts of interest in the studies or says the words “mechanically-cut mesh” once. He does address the jury at the end saying, “We believe our product is safe and helps millions of women each year, but if you don’t, we ask you to consider that Ms. Batiste has many other injuries which could have caused similar injuries.”
He then hands the final few minutes of to the only woman lawyer in the courtroom, Ms. Deming.
Blame the Victim
“We humbly ask you to consider what it takes to become a world leader in the medical device industry, a company who saves and improves the quality of many, many women’s lives,” a sentence spoken early in her presentation. Deming focuses on Ms. Batiste’s other injuries, again blaming back surgeries, strokes, femeral catheritization, anything but the TVT-O for Ms. Batiste’s injuries.
Deming is bright red, her chest and face is splotchy. Her voice quivers and is shaky. She keeps using the phrase, “We humbly ask you to consider. . . . .” Deming, as in her opening, panders to the jury. “I’m sure you’re all tired after almost three weeks of trial. We all are, as we’ve been her five weeks.” After thanking the jury for their service, Deming sits.
Richard Capshaw (Capshaw & Assoc) is an attorney also representing Ms. Batiste, though he has not yet presented for the plaintiff’s side. Mr. Capshaw is a large man with a large presence. Emanating from him is kindness: big, grand kindness and empathy. He will give the plaintiff’s short rebuttal, which will officially close the case.
Though the jury has been instructed not consider “sympathy” in their decision, I sense it might be hard to discard based on this man’s larger than life presence. Mr. Capshaw ends this war with a bang. He says, “I am a man obviously, but I am speaking for Ms. Batiste because she cannot speak for herself. The mechanically cut TVT-O has injured her permanently. Before the implant, she had health problems, but a good life; a fiancé, a relationship and it was good. And now, ladies and gentlemen, she has nothing. We are not asking you to compensate her for injuries that were not a result of the TVT-O, just for those that are a result of Ethicon’s malicious behavior, as evidenced by the fact that they knew, they knew! For years they knew about the dangers of the mechanically-cut mesh, and they put it in this woman right here anyway! They put it in Ms. Batiste and many other women who suffer greatly, as she does!”
The defense objects. The plaintiff’s counsel has been instructed not to refer to the more than 12,000 other cases pending against J&J/Ethicon. Mr. Capshaw continues without missing a beat, saying, “You are the only ones who can send a message to this company, that they can’t come down to your state, your community, the great state of Texas and injure people here. None of those attorneys sitting over there is even from J&J or Ethicon. None of them bothered to come here. You must send a message to New Jersey that they can’t come down here and harm your community without strong repercussions. Make these attorneys pick up the phone and call them with your loud and clear message. It’s in your hands now. This is all up to you, but we suggest you find for the plaintiff and in addition to compensatory damages, we suggest based on the math (shown on the power point slide on the wall as Mr. Capshaw speaks), that you award punitive damages of at least $10 million dollars. Thank you for your time.
UPDATE: 12:15 – Plaintiff’s attorney’s expect a verdict before the end of the day today, Thursday April 3.