Mesh Medical Device News Desk, August 24, 2018 ~ Eve Sherrer lost both of her cases against Boston Scientific and C.R. Bard in 2016. Now an appellate court has opened the door and granted her a new trial against Bard.
The pelvic mesh trial of Eve Sheerer was notable in a number of ways.
The Kansas City, Mo case was the first trial of a plaintiff accusing two companies of producing defective polypropylene mesh she was implanted with to treat incontinence.
Image: Eve Sherrer, Art by Akre
It was the longest mesh product liability trial and was also the only trial this publication, Mesh News Desk, was thrown out of covering after complaints by defense.
This week, a Missouri appellate court granted Sherrer a new trial in her allegations that she was injured by pelvic mesh made by C.R. Bard.
The court ruled the trial court committed erroneously barred evidence of Bard’s previous criminal convictions that should have been allowed even though it involved a different medical device.
Eve Sherrer v. Truman Medical Center inc, et al., [#1216-CV27897] began in December 2015. The 62-year old nurse received two polypropylene pelvic meshes to treat her incontinence.
She underwent a revision surgery in January 2011 to removed two-thirds of a Boston Scientific Solyx mesh but had a C.R. Bard small-pore Align multi-incision mid-urethral mesh sling implanted.
Three years later, surgery by urologist Dr. Shlomo Raz at UCLA, included removal of the Align and the rest of the Solyx. She became one of more than 100-thousand U.S. woman to filed a defective product lawsuit against both manufacturers.
But on February 2, 2016, after a nine-week product liability trial, Sherrer suffered a courtroom loss. Jurors rejected her claims that the mesh was so stuff for use in human tissue that she now had difficulty walking, pain and a “nonfunctional vagina.”
Her legal team had asked for an award up to $28 million in damages.
Instead, the defense blamed Sherrer’s pain on arthritis in her hip and other medical conditions. And an attorney for Boston Scientific accused Dr. Raz of causing more harm than good in the removal surgery.
The Honorable Robert M. Scheiber presided over the trial.
Sherrer was represented by Tom Cartmell, of Wagstaff & Cartmell, Grant David of David Bethune & Jones, and J. Scott Bertram of Bertram and Graf.
Scientific was represented Shook Hardy Bacon attorneys, Robert Adams and Hildy Sastre, and Lori Cohen of Greenberg Traurig represented C.R. Bard.
On Tuesday, August 21, the Missouri Court of Appeals in St. Louis granted Ms. Sherrer a new defective product trial against medical device maker, C.R. Bard alone.
“Because the trial court committed reversible error in excluding evidence relevant to impeach Bard, the judgment in favor of Bard and against Sherrer is reversed, and this matter is remanded for a new trial as to Bard. The judgment in favor of Boston scientific is affirmed.”
What was excluded?
In 1994 Bard pled guilty to 391 counts of conspiracy false statements, mail fraud and adulterated product. It was required to pay criminal fines of more than $30 million. The issue involved heart catheter devices.
Bard argued to the court that information was irrelevant, dated and involved a different medical device, while Sherrers’ team argued bad acts, even by a corporation, should be introduced to contradict evidence presented by Bard of its good corporate character.
Ultimately the plaintiff was not allowed to introduce Bard’s criminal conviction while Bard told jurors about its good corporate character during opening statements.
The appellate court says the trial court committed reversible error when it disallowed the plaintiff to cross-examine the COO of Bard, John Weiland, about the company’s prior criminal convictions.
During the trial, Bard tried to convince the jury that the doctor was at fault, for failing to anchor the Solyx as directed by the manufacturer, relieving the manufacturers of liability. The unattached anchor was reported to have been digging its way through the vaginal wall. The case against the doctor had been settled before trial.
Addressing that issue, the appellate court decided the trial court abused its discretion when it permitted the mesh makers to impeach Sherrer using her allegations in her original complaint about the doctor’s failures. Under Missouri law, when you sue two defendants, you can’t use the allegations one against the other and say, “See- even she admits it was the doctor who caused the injury not the manufacturer.”
The Sherrer team had called for a mistrial when during the case Bard displayed a power point slide that included her settlement with her medical provider hospitals, Truman Medical Center and University Physician Associates. The trial court found the jury was unlikely to see the settlement slide because it was displayed so briefly. Defendant said it was an older version of a timeline that was not corrected by the technology team to remove the reference to settlement.
That did not constitute prejudice and did not warrant a mistrial said the judge.
MESH NEWS DESK
The Sherrer trial was also notable because it was the first time Mesh News Desk and your editor was thrown out of covering the proceedings, as we’ve done for a half dozen other trials through a feed from Courtroom Network Network (CVN). Bard attorney, Lori Cohen complained to the judge that her picture and contact information were on Mesh News Desk, despite the fact that is prominently displayed on her law firms’ website.
Cohen also complained that a reader made,”some threatening comments directed towards Ms. Cohen. A little bit towards me,” complained Mr. Adams.
Your editor hired a Kansas City lawyer to try and have her Courtroom View Network feed restored but the judge declined the access to MND while allowing CVN to remain the camera in the courtroom.
The court said it would “discontinue access to the advocacy organization” even though in the brief filed on behalf of Mesh News Desk, it stated that editor, Akre has more than 20 years working as a journalist in mainstream media. ###
Mo Court of Appeals on Sherrer, August 21, 2018 here
MND, Opening Arguments Sherrer Trial, December 2, 2015 here
MND Denied Access to Trial here
MND, Dr. Raz Contributed to Sherrer Injuries, December 3, 2015, here
CVN Coverage of Sheerer here
Missouri Lawyers Media, Web Reporter Shut out of Trial After Reader’s Comment, here
Judges final order on MND, January 6, 2016 here
Mesh News Desk, Sherrer Boston Sci Bard Pelvic Mesh Trial Finally Goes to the Jury, Feb. 1, 2016 here