July 8, 2013~ Telling the courtroom that California would take three weeks to seat a jury, West Virginia U.S. District Court Judge Joseph R. Goodwin had a jury selected in just two hours in the first federal case naming a manufacturer of transvaginal mesh.
C.R. Bard, maker of Avaulta meshes, is named as a defendant by a former Georgia nurse, Donna Cisson, 54, and her husband Dan. Bard lost a state case in California in June of last year over another Avaulta mesh product. Bard has since removed the Avaulta line of polypropylene transvaginal meshes from the U.S. market. Bard is appealing the $5.5 million win for Christine Scott of Bakersfield.
In May, 2009, Cisson had a Bard Avaulta Plus Biosynthetic Support System implanted to treat pelvic organ prolapse (POP). Her product liability complaint says she has suffered permanent pain, injury and deformity. Cisson has undergo numerous removal and corrective surgeries which represent an economic loss to her family and her mental and physical health, says her complaint (Complaint Donna Cisson 20111913894). Her husband is suing for loss of consortium.
An initial jury of 18 was honed down to 8 jurors in two hours. Judge Goodwin advised they would begin opening arguments on Tuesday morning. He predicts the case should take about three weeks.
In the Final Master Complaint the plaintiffs say that C.R. Bard knew or should have known that polypropylene mesh is not inert (is not dormant) and is “biologically incompatible with human tissue.”
The Cisson case is a bellwether case and the first of four that will be heard back-to-back to test legal theories and gauge the strength of each side’s position. The resolution of these cases could result in an early settlement to the plaintiffs or a resolve by Bard to continue to defend itself case-by-case.
Bard, based in Georgia, manufacturers, distributes and markets numerous medical devices. Brand names of Bard’s transvaginal meshes include:
*Avaulta Plus BioSynthetic Support System
*Avaulta Solo Synthetic Support System
*Pelvitex Polypropylene Mesh
According to its website, C.R. Bard, a subsidiary of Davol Inc. is “committed to sustainable responsibility with an emphasis on maximizing the positive impact on the health and wellness of society.”
The Bard Avaulta litigation was consolidated into one federal court in Charleston, West Virginia in October 2010 as part of multidistrict litigation (MDL). An MDL allows substantially similar cases to be grouped so that consistent rulings move the cases through the court system efficiently.
This is just the first of 3,807 (as of June 26) product liability cases naming C.R. Bard filed in MDL No. 2187 in the Charleston, W.V. federal court. Additionally there are 25,129 (as of June 26) cases naming five other mesh manufacturers including Ethicon (Johnson & Johnson), American Medical Systems, Boston Scientific, Coloplast and Cook. Thousands of transvaginal mesh cases are also filed against manufacturers in various state courts.
All are manufacturers of polypropylene-based mesh that is implanted in a woman to shore up pelvic organs that become lax with age, following childbirth, after a hysterectomy or due to deficient collagen. It is the same polypropylene (PP) mesh used for hernia repair. Transvaginal mesh and mesh slings to treat incontinence remain on the market except for the Avaulta which was voluntarily removed and the Prolift, removed from the market last year by Ethicon, a unit of Johnson & Johnson.
The Southern District of West Virginia has updated information including court documents and numerical count of cases on its website here.
Opening arguments in the Cisson v. C.R. Bard case, 2:11-cv-00195 begin 9 a.m. Tuesday, July 9.