Closing Arguments in Batiste v. Ethicon Pelvic Mesh Trial

//Closing Arguments in Batiste v. Ethicon Pelvic Mesh Trial

Closing Arguments in Batiste v. Ethicon Pelvic Mesh Trial

Aaron Horton, the Mesh Warrior

Aaron Horton, the Mesh Warrior

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.


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.

Aaron and Linda

Aaron and Linda

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.

Thomas Cartmell, Wagstaff, attorney for Batiste

Thomas Cartmell, Wagstaff, attorney for Batiste

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.

Ulf Ulmsten, founder of TVT

Ulf Ulmsten, founder of TVT

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

William Gage, Butler Snow, attorney for Ethicon

William Gage, Butler Snow, attorney for Ethicon

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.”

N. Kay Deming, attorney for Ethicon

N. Kay Deming, attorney for Ethicon

He then hands the final few minutes of to the only woman lawyer in the courtroom, Ms. Deming.

Blame the Victim

TVT-O from TVT Meshed Up, UK

TVT-O from TVT Meshed Up, UK

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, attorney for Batiste

Richard Capshaw, attorney for Batiste

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.



By |2014-04-02T14:32:14+00:00April 2nd, 2014|Legal News|14 Comments

About the Author:

I’m National News Editor, Jane Akre and I began Mesh Medical Device News Desk aka Mesh News Desk (MND) in the summer of 2011 just after the Food and Drug Administration issued an explicit warning to the public that complications associated with surgical mesh used for prolapse repair (POP) and incontinence (SUI) are NOT rare! That was the starting point for the litigation you see today and thousands of lawsuits have been filed by women whose lives have been altered, some permanently, by the use of this petroleum-based product.


  1. Paula April 3, 2014 at 2:55 pm - Reply

    AMEN. Mr. Capshaw.

  2. Patty April 3, 2014 at 5:10 pm - Reply

    I have been following this every day, and I pray this jury does the right thing. The evidence is there!

  3. Barbara Dykes April 3, 2014 at 5:27 pm - Reply

    Mr. Capshaw made the hair on the back of my neck stand up.Especially when he pointed out that Ethicon’s Lawyers were there, but no one from Johnson and Johnson came.Thank you Aaron for being there with Linda as they tried to blame “other health problems” instead of taking responsibility for their defective product.And Ms.Deming…what a lame argument.Its in Gods hands and I don’t think J&J talks to God much.God bless you Linda.

  4. guest April 5, 2014 at 12:02 am - Reply

    She should have got punitive damages too. The two women that said no, do not know what women have gone through and suffer for the rest of their life. NOT THE ATTORNEY’S FAULT HE ASKED, IN THIS CASE. how many women could go into a court room with a doctor that has never seen her, and he looks at the scars from infections and trying to get it removed , very plain evidence that any human can see. on going, never stopping.

    How many of those men and women representing the companies would say yes for the same mesh from companies that were put into women to be put in their male and female organs, knowing it most definitely moves and causes permanent damage pain infections , for the rest of their life stopping their life, ruining chance to have normal life with a husband, and chronic pain, that their husband , wife, boy friend and girl friend , family have to know the reason you cannot sit long , stand long, is due to the mesh that you cannot enjoy life at all as you did, smiling in pain is very hard to do.

    Very happy that she won, when 1 of us win in court, we all are happy for them knowing they deserve everything given and more. Thanks to the attorneys that fought a good fight for ms. Batiste. Hope other attorneys will follow and try as these did. THEY MADE BILLIONS AND WANT TO SETTLE FOR A MILLIONS. i am sure women every where would like to be in every court room supporting women damaged by mesh. HARD TO BELIEVE THE 2 WOMEN SAID NO TO PUNITIVE DAMAGE AND THE MEN ON JURY SAID YES,

  5. Aaron Leigh April 7, 2014 at 10:52 am - Reply

    Hi ladies;

    I’d like to hear your thoughts on a psychological phenomenon that I found quite curious and has been true of other cases regarding the mesh. The ONLY TWO dissenting jurors were women of the age group which is/would be affected by SUI/POP and the mesh itself. If the jury had been unanimous 12-0, punitive damages would have been awarded.


    I find it to be a strange psychological phenomenon that I have NO insight into – thoughts?

    • Jane Akre April 7, 2014 at 11:45 am - Reply

      Because they spoke with their learned ob-gyns who did a number of hysterical women running to lawyers to seek a “pay day” is my guess..

      • HE April 7, 2014 at 9:15 pm - Reply

        Yes, Jane I believe you are 100% on. I have spoken to so many women in this age group that are of this opinion. I know beyond a shadow of a doubt this is true – because it happened to me. I have spoken to so many women who have the “side effects” of slings and are being told they need back surgery, hip surgery and that mesh doesn’t cause pain. I’ve been told by a well known Dr. that “mesh doesn’t cause pain”. They believe their Dr.’s, they’ve probably had a relationship with them for a long time. One Dr. told me that the women are in “for the money – the $10,000 they’ll get”. Another Dr. was singing the mesh praise, when he realized I was an injured patient. He told me “you’re the poster woman for what can go wrong with mesh”. That statement is upsurd! Does he even know what he is saying? He is admitting he knows how very wrong it can go. Is it really worth a life lost? Are we so hung up on youth, beauty, that we’ll sacrifice anything to get it? Some Dr.’s seem to think this is the case. Thank you all for your battling this for us – the walking wounded.

      • Jaramillo April 10, 2014 at 8:04 am - Reply


        I had my removal @UCLA in 10/12. I had reconstruction due to on-going complications in 12/13 @ UCLA. Raz sent me for a cat scan when I returned home b/c he had concerns of bowel obstruction as I was impacted ated the time of surgery in my upper bowels. Well some of us can never normally defacate after the implant. I have permananent neurological damage and can’t go without large quantities of laxative. During the catscan they identified a large 9 cm ovarian cyst so I had to seek a gynecologist in my are. The first one said mesh is a conspiracy theory based on the attorneys to make money. He reported he does multiple implants without any complications. He had all my operative reports from UCLA. His remedy was to remove both my ovaries within the next 3 days. Needless to say saying goodbye to him was a no brainer. I found a second surgeon that is monitoring the cyst regularly and is recommending surgery as a last resort. Her recommendation was even to drain it as needed rather than having to go back in. Some physicians are concerned with being conservative. Most I have encountered are in favor of the radical approach. The more they operate, the more they earn. We have to remember this procedure is still recommended as “gold standard”. Unfortunately we had to search for the complications. They were not presented. The first physician gave me a consent to sign and mesh was included on his standard form. The real complications were not identified. There was one sentence about mesh. The community at large does not recognize the scope of complications because where has it been discussed publicly? It must be difficult for jurors to believe that this is allowed to happen. After all it is FDA approved. The eurological society continues to support it’s use as a gold standard and at the trials no one can speak to the number of FDA complaints or the number of MDLs that are pending. Why would they trust or believe one woman when there are a number of experts in the field promoting and singing the praises of mesh. At his trial I was confident large quantities of evidence were presented regarding the with holding of complications, inappropriate and intentional tactics to market the product, J@J’s personal e-mails about presenting it as favorable. I was more worried that they would not win defective device, but never doubted they would prove failure to inform. It’s a scary future as it seems “IT’S THE LUCK OF THE DRAW” Why are the plaintiffs attorneys unable to present the outcome of previous cases. Is it not common practice to cite previous case outcomes to declare precedence? My biggest concern is women having true informed consent. I am 50 now. My children are grown and self sufficient. My heart bleeds when I read the comments from women that are still raising small children. I can’t fathom how they can do it. I am still fighting to go to work. It exacerbates my symptoms , agitates the pain, promotes the swelling, and is exhausting. I drive home thinking of how good the heating pad will feel and I literally do nothing the rest of the evening. I can’t imagine life if I had to feed children, do home work, attend parent conferences or community activities. All these things are essential to raising healthy and confident children. I admire the women that are in a position of attempting to fufill this role and yet my heart bleeds for them because of the physical and emotional pain they must go through to get through their day. My kids are 19 @21. My oldest is a nurse and neither of them understand. Mesh complications cause friction in our relationship because they don’t understand why I don’t go shopping with them. They don’t understand why my ability to attend a function depends on the day and the symptoms. They are angry when I don’t answer my phone after 7 or 8 in the evening b/c I am already asleep. They don’t comprehend why we have to leave a restaurant if it does not have padded chairs and I didn’t remember my pillow. If my children can’t understand, having known my level of activity and passion prior to mesh, I myself wonder how jury members will get it when they truly have very limited information and conflicting facts. I appreciate how Aaron can support her mother and yet I understand my children’s inability to comprehend the reality of mesh. We have the dilemma of no easy answers, explanations, or way out. Survival is a day at a time and our reality is we can’t count on the jurors, the juge, the FDA or Eric Holder. It is the luck of the draw and our prayers for divine intervention. I wish we could do more to protect women seeing these doctors that continue to recommend and use “the gold standard”

  6. Mary pat April 7, 2014 at 12:34 pm - Reply

    Because so many women deal with SUI and prolapse maybe some women get desensitized. Maybe because some women choose to live with it, they resent others who try to fix it. Consequently, they have no compassion for women suffering from mesh gone wrong. A womens choice to live with or fix SUI/prolapse is not the issue. As we learned the hard way, from literally being human guinea pigs, the real issue is the damage mesh causes and the deception of the pharmaceutical companies to hide the truth so they can continue to mutilate women with zero liability while they make billions from selling mesh. Those two women jurors had a rare opportunity to protect women. How sad that they didn’t stand for women. When you read matthew johnsons quotes it apoears that those two jurors are the only relevant thing from the entire trial.

  7. Barbara Vance April 7, 2014 at 8:22 pm - Reply

    Aaron~Great article! I’m so glad you were there

    giving your support to Ms. Batiste. I see this verdict

    as a win for all of us mesh injured women as it’s sending

    a message to the manufactures that this has got to stop!

    Thank you for your compassion that you continue to show

    us daily with your hard work. Blessings.

  8. Pam W August 23, 2014 at 11:39 am - Reply

    I have tried to read the verdict, but im only seeing comments pertaining to it. Is there another post somewhere about the verdict and the jurors?

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