MND, September 20, 2015 ~ Linda Batiste was awarded $1.2 million by a Dallas jury last year as compensation for the injuries she suffered from her defective pelvic mesh implant made by Johnson & Johnson (J&J). Now the healthcare giant wants that award overturned.
The 65-year-old Batiste died from cancer last month. She never saw her compensation award which is to be paid to her family whenever J&J runs out of appeals.
Law360 reports that one of those appeals was presented before a judicial panel at the Fifth Court of Appeals in Dallas, September 16.
Attorney Stephen Brody spoke on behalf of J&J. Besides failing to establish the TVT-O mesh was defectively designed, Brody said Plaintiffs failed to prove her injuries were caused by the mesh used as a treatment for stress urinary incontinence.
Batiste had numerous health problems and J&J told jurors at trial her mesh injures were caused by previous surgeries.
Representing Batiste to the appellate panel, attorney Sarah Turman-Vedral argued the expert doctor at trial, M. Tom Margolis MD, who removed Batiste’s mesh and is considered a mesh removal specialist, testified her injuries resulted from her TVT-O implant.
The Batiste trial was the first to show the TVT-O was defectively designed. Transvaginal tape-obturator requires the polypropylene mesh to hammock the urethra and then exit through a woman’s obturator space which includes up to eight layers of muscle, ligaments and tissue.
In Huskey v. Ethicon, (here) jurors also found the TVT-O to be defectively designed. The mesh medical device remains on the market.
At trial, attorneys for Batiste showed jurors there were safer alternatives to TVT-O that could have been used by her doctor, but Brody for J&J argued on appeal Plaintiffs did not prove those meshes had less risk than TVT-O. Turman-Vedral countered some alternatives, shown to jurors, are not yet approved for use by the U.S. Food and Drug Administration.
The Batiste case was tried under Texas law which requires Plaintiffs show another product existed that was a safer alternative to the defective product used – creating a higher burden for the Plaintiff.
According to Law 360 (subscription required) here:
“Justice Bob Fillmore asked Turman-Vedral several times to point out the specific evidence that Batiste’s injuries were caused by the TVT mesh the jury found to be defective. Justice Bill Whitehill said he didn’t know how to draw a line between evidence that injuries like those Batiste suffered can result from a design defect and evidence that Batiste’s injuries were in fact caused by that defect. “
At the end of the Plaintiffs’ case in Lewis, J&J asked for and received a directed verdict in its favor because of alleged failures in the Plaintiffs’ case. Brody’s letter arguing the failings of the Lewis case can be found here.
The Lewis case was also tried under Texas law, though heard before Judge Joseph Goodwin in multidistrict litigation proceedings in Charleston, WV where more than 83,000 pelvic mesh product liability lawsuits are consolidated.
Besides Brody, J&J attorneys included Charles Lifland of O’Melveny & Myers LLP and Scott Stolley of Cherry Petersen Landry & Albert LLP.
Batiste attorneys included Peter de la Cerda of Edwards & de la Cerda PLLC, Richard A. Capshaw of Capshaw & Associates, Tim Goss and Sara Turman-Vedral of Freese & Goss PLLC and David P. Matthews of Matthews and Associates.
The case is Johnson & Johnson et al. v. Batiste, case number 05-14-00864-CV, in the Texas Court of Appeals for the Fifth District.
Lewis v. Ethicon is Over! Judge Grants Ethicon’s Motion to End Trial, February 18, 2014, MND
Day Five: Lewis v. Ethicon: Ticking Time Bomb
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