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Pelvic Mesh Trial Judge Gives Jury Instructions in Huskey v. Ethicon

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Judge Joseph R. Goodwin, Charleston, WV

Judge Joseph R. Goodwin, Charleston, WV

Judge Goodwin instructed the jury just before 5pm on this Day 8 of the Huskey v. Ethicon.

The Judge who has presided over this product liability trial for two weeks provided general instructions, a statement of the rules of law and the guidelines for their deliberations and verdict.

There are now eight jurors, 6 women and two men, after one juror had a family incident that caused her to drop out last Friday.

This is the second bellwether trial naming Ethicon to go before Judge Goodwin.

The last case, Carolyn Lewis, was ended abruptly by Judge Goodwin last February when he a granted a defense motion for a directed verdict. Two other pelvic mesh injury cases have gone before Judge Goodwin. Wanda Queen v. Bard ended on the eve of the trial as a settlement was offered. Donna Cisson v. C.R. Bard resulted in a $2 million settlement for Mrs. Cisson. courthouse two

The following are notes of the jury instructions that may or may not be entirely accurate. My apologies in advance for any typos.

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“You are judges of the fact you must apply as you find them to the law as I give it to you. You must decide this case based solely on the facts. Solely on the evidence presented in this case the sworn evidence of witnesses and any maters…not evidence from my statements. Objections are not evidence. Any evidence stricken you should ignore the question.

Drawings and demonstrative aids are not evidence. If you find a demonstrative aide did not accurately summarize the evidence, ignore it. The law does not permit you to be governed by sympathy or prejudice; on the contrary it must be supported by the evidence and based on the law. Feel free to use your common sense, feel free to based reasonable conclusions. Feel free to consider each witnesses ability to testify, their demeanor, state of mind, intelligence, and whether consistent or inconsistent with the evidence. You may reject any part of the witness because you believe they are inconsistent.

You must evaluate that testimony on tape the same as if it were live. Unlike other witnesses, expert witnesses can offer their opinions on scientific and technical matters. Because they have expressed an opinion doesn’t mean they have to accept it. You should consider each opinion and give it the weight you think it deserves. You are the sole judges of the facts in this case. Persons are of equal worth and standing in the community. The fact that a corporation is one of the “persons” here must not affect your decision in any way. J&J is regarded as a person in this instance. They stand equal in the law.

When a corporation is involved it may act through its employees and its is responsible for acts and statement made within the scope of duties. Agents and employees are acting within the scope.

In the exhibits that were admitted as evidence, certain irrelevant information has been redacted or blacked out with my permission. The fact an exhibit was redacted should not factor at all, and you should not draw any inference. Some documents that have been received into evidence bear a confidentiality designation. That designation indicated by the word confidential was made by prior arrangement with the parties when they were exchanging documents. They were not made when the document was first created and you are not to draw any inference from a document if it bears a confidential designation.

Learned treatises, unlike other exhibits, you will not receive for the jury room. You should consider statements from these materials the same as any other evidence. During the trial the plaintiff admitted into evidence an examplar of the TVTO. This examplar product will be provided to you in the jury room during your deliberations. You only are permitted to visually inspect the product you are not to conduct a physical exam of the product. So no probing or pulling will be permitted. It is there strictly so you can see what has been described to you in the testimony. The plaintiff must prove every element by the preponderance of the evidence. Should their fail by the preponderance of evidence, you may find for the defendant on that claim. You must be persuaded in considering all the evidence that the evidence presented is more likely true than not true. Truth beyond a reasonable doubt is a criminal case it doesn’t apply here.

The First Claim- the TVTO was defectively designed. To recover damages for a defectively designed product, a person injured by the allegedly defective product must establish the following elements:

1-       That a defective condition existed in the TVTO in the time it left the control of the defendants.

2-      That the defective condition made the TVTO unreasonably dangerous.

3-      That Mrs. Huskey was injured

4-      That her injuries were proximately caused by a defectively condition in the TVTO product.

A product is unreasonably dangerous when the risk of danger outweighs the benefits of the design; when the product is put to a use that is reasonably foreseeable, considering the nature and function of the product.  Proximate cause means any cause in the natural sequence produced the injury. It may not be the only cause. It is sufficient if it caused, with some other cause, acted at the same time which some combination caused the injury. Whether she proved defective design is up to you.

Mrs. Huskey also brings a claim for failure to warn. She contends TVTO is reasonable dangerous because it lacks an adequate warning. Because it can only be obtained by a physician, the defendant had a duty to adequately warn the physicians who implant the TVTO. The defendant did not have a duty to warn consumers such as Mrs. Huskey.

To find for failure to warn you must find that:

1-       That the defendants failed to provide an adequate warning to Dr. Byrkit

2-      That the lack of an adequate warning rendered the TVTO unreasonable dangerous

3-      That Huskey was injured thereby

4-      That her injuries were proximately caused by a lack of warning about TVTO.

J&J had no duty to warn of risks already known in the medical community.

Whether she has proven her claim for a failure to warn must be decided by you, the jury.

She also has a claim for Negligence. The defendant had a duty to use ordinary care to be free from negligence. That means the failure to do something a reasonable, careful company would do, or would not do under circumstances similar to that shown by the evidence. The law does not say how they would act. That is for you to decide.

Mrs. Huskey says they were negligent in two ways – In their design of the TVTO. To recover damages for negligent design, you would have to find that the defendant negligently designed the TVTO so that the result was she was injured and the TVTO was what caused that proximate injury by the negligence.

Negligent Failure to Warn – To recover damages for negligent failure to warn a plaintiff must prove, by the preponderance of the evidence, the defendant failed to provide adequate waning to Dr. Brykit; that Mrs. Huskey was injured; that the defendant was the proximate cause of Mrs. Huskey’s injuries. The defendant must provide that warning to physicians not consumers.

Whether she has proven her claims for negligence is for you the jury to decide on evidence presented at trial and the instruction I gave you. If you find on all of her claims design defect, failure to warn and negligence, only then can you decide on damages. There are no damages otherwise. If you find for Mrs. Huskey, you must then find an amount of money that will reasonably compensation her for damages resulted from the wrongful conduct taking into consideration the nature, extent and duration of her injury and the preexistence of any condition. Take into consideration the loss of a normal life, temporary or permanent ability to enjoy life and the pleasurable aspects of life. Any pain and suffering experienced and reasonably experienced as a result of the injuries and any emotional express. Any reasonable expenses of medical care treatment and services and the recent cash value of those services certain to be received in the future. Whether any element has been proven by the preponderance is up to you to conclude.

If you decide for Mrs. Huskey you may find the amount of money that will reasonably compensate Mr. Huskey for the loss of companionship of his wife and which has been proven by the preponderance of the evidence and has been caused by the evidence. You may not award loss of consortium if you do not find for Mrs. Huskey.

If you find for damages in the future you must determine those. If they are continuing damages, you must consider how long they will continue. How long they are likely to live, you may compute. You must determine their present cash value, the sum needed now compared to what will be needed in the future.

Elect a floor person, that person will preside and be your spokesperson in court. All jurors must agree on a verdict. You must consult with one another and deliberate with the intention of reaching agreement, if you can do so. During your deliberations, do not hesitate to reexamine your own views or change your opinion but do not surrender your opinion just to reach a verdict. When it is unanimous date, let the court know you have reached a unanimous verdict. You may want a meal, a break or recess for the day; you are now in charge of your schedule. You may send a note through the court security officer. You may not reveal how the jury stands on the issues. Sometimes I get notes asking for additional information you cannot get any. You have what you need.”

Judge Joseph R. Goodwin, Charleston, WV

Judge Joseph R. Goodwin, Charleston, WV

With that the jury went in to deliberate.

Two hours later, Judge Goodwin asked them if they would like dinner. No they said, and broke for the day.

Jury deliberations continue Friday at 9 am.

 

22 Comments

  1. Jorgie says:

    Thank you for sharing. I am new to legal matters and the court system and it blows my mind that the jurrurs are not allowed to know how big this is. ie. how many women (and men) have been damaged. That seems absurd.

  2. msm says:

    I am confused.

    ” Whether she has proven her claims for negligence is for you the jury to decide on evidence presented at trial and the instruction I gave you. If you find on all of her claims design, failure to warn and negligence, only then can you decide on damages. There are no damages otherwise.”

    What if she had only claimed negligence?

    Or failure to warn?

    Or defective design?

    If she had only claimed one of these, then damages could be awarded if the jury found in favor of the plaintiff?

    Why do all three complaints have to be proven for any damages to be awarded?

    I understand that the elements of each claim must be proven. But, if all three claims (and each element thereof) must be proven for ANY damages, then why would anyone file more than one claim? I guess I was naive to think that each claim would stand on its own, much as the charges in a criminal case. (Guilty on count one but not guilty on count two. )

    All that left is to pray for the Huskeys and for the jurors to see the truth through the J&J smoke screen.

    Thanks for all your work, Jane.

  3. sandy says:

    We all need to be on our knees praying ! A verdict for her is a verdict for all.

  4. Tammy says:

    Jane, Being in court. With the jurors, how do you feel the trail went?

    • Jane Akre says:

      Pray. Who knows. In West Virginia they love their coal mines, and hate unions and lawyers….Will they realize that corporations can lie? Have they had that experience personally or do they believe doctors in medical societies, who spout the Gold Standard cannot be compromised and wrong? Might they realize how big this really is, or is it just one woman against Ethicon (note they didn’t say J&J at all I don’t believe). Love it when the judge says you should consider corporations to be the same as a person. Really? Can they go to prison too?

      Pray

      (Unions- I’m referring to the concept of organizing workers to get fair pay and safe working conditions, you know, standing up to corporations).

      • Jackie says:

        I love ( NOT)the statement of considering the corporation as ” a person”! Well I WISH that was a LEGAL BINDING FACT and the ‘person’ could go to prison for the same GUILY VERDICT we real people would be sentenced to I were found guilty!

        THAT IS THE DAY I WILL TRULY SEE JUSTICE SERVED!

  5. Teresa says:

    During the trial the plaintiff admitted into evidence an examplar of the TVTO. This examplar product will be provided to you in the jury room during your deliberations. You only are permitted to visually inspect the product you are not to conduct a physical exam of the product. So no probing or pulling will be permitted. It is there strictly so you can see what has been described to you in the testimony.

    I would also ask, why the hell can’t the juror’s FEEL the “mesh” because as soon as they could feel how sharp the edges are and imagine it cutting and sawing through their most intimate parts or knowing it can erode and cut a man’s delicate penile skin.. how long would it take for a verdict in Mrs .Huskeys favor.

    • Jane Akre says:

      They might cut themselves… or be stabbed with the trocar. (Sorry its late and I’m tired)

      • msm says:

        Jane, that’s more true than we may realize. Right? I recall the idiot (with which law firm I don’t recall) who wrote that TVT was not like POP mesh. That TVT was thinner than a hair and very soft. He obviously had been fed a line of crap by a manufacturer or “consultant”.

        I wish the TVT itself could have been put in the hands of each “experts” on the stand while the plaintiffs attorney asks them to describe it, feel the edges, tug on it a bit. Better yet, take some cotton and see how the edges grab it and pull it apart. Again, force each defense “expert” to do this. Let the jurors see that close up. They wouldn’t have to touch it themselves, although it makes no sense that they are not allowed. If it touched the plaintiff, they should be able to touch it as well. Rest up, Jane. Thanks for your work.

        • msm says:

          I found it. His name is Robert Blanchard with Levin Law. He has edited the article but forgot the comments. One comment reflects the original text. The comment states, “No thicker than a human hair? Um NO! I had my “tape” sling removed yesterday after it eroded through the vaginal wall and sliced into my urethra. The mesh came out as stiff, hard plastic, the same thickness and density as the plastic mesh used for sewing crafts.” I commented in “The Doctors: Risks of Mesh Implants for Bladder Control” on MDND in May that he had stated transvaginal mesh for SUI is ” no thicker than the diameter of a human hair” and should not cause any problems in comparison to POP mesh.

          Enough of that but I’m just tired of misrepresentation of the material. Especially by people who have never seen it nor touched it. Now the jury is asked to decided this matter without all the evidence. At least they can see it close up. Praying.

          • Jane Akre says:

            Dr. Pramudji said it was the same coming out as going in. Huh? No one agrees with that… there are variations yes, but no one agrees its the same.

  6. Pam says:

    Seriously! The jurors can’t touch the mesh with their hand or fingers because they might hurt themselves. I bet they weren’t told the reason because that in and of itself would be a resounding agreement that it should never have been implanted in anyone’s body, much less a very sensitive area.

  7. Mary pat says:

    Judge Goodwin is renamed judge badman! He is so biased towards the pharmaceutical companies that it is reprehensible! Plaintiffs don’t get to tell the jury that there are nearly 70k cases filed, or that mesh was never tested or approved by FDA, or about the 510k provision, or that the defendant destroyed critical evidence, or that other courts have found the devices defective, and even more shocking, jurors can’t touch the mesh!!!!! Yet defendants can bring say whatever they want with no restrictions! They can try to create the illusion that mesh was tested and approved by FDA because sutures were! Defendants can conceal the fact that they broke the law by spoiliation of evidence. Defendants get to go on and on about how AUGS and all their paid-off docs call mesh the gold standard! Judge badman will someday face a higher power. When he faces the real judge on judgement day he will be sorry for his corruption of justice!

  8. jade says:

    So, IF the implanting surgeon KNEW the complications and risks of the mesh and chose NOT to share that with the patient, victims canNOT win “failure to warn”? But, in my opinion, IF the implanting surgeon was a PAID consultant of the manufacturer, then that doctor is actually an employee of that manufacturer and is conjoined to the manufacturer. Thus, that conjoining makes the doctor/manufacturer liable for “failure to warn” – correct? Besides this confusing reasoning – why isn’t the patient legally entitled by law to hear all the complications and risks PRIOR to surgery? The patient is LEGALLY entitled to hear ALL risks, etc. in order to give informed consent. A prominent doctor informed me at my second explant of everything that could or might happen PRIOR to my surgery and asking me to sign the informed consent. I told him after hearing all of the things that might happen to me – I was afraid. He replied “Your implanting surgeon must have went over these risks/complications point by point before he implanted you.” I said “No” – he told nothing.” The doctor then insisted, “He must have.” And, I replied “No he did not tell me anything!” The explant doctor was shocked!

  9. Ann says:

    As I sit here reading this all I can think is this judge does not care one bit about any of this. It’s funny how women are winning in other district courts but here everything is such a fight. I was told not to comment on these things but I honestly feel not one of us stands a chance. This judge has given the manufacturers every break he can and has not once cared about us. To tell them they can not touch or they can’t do this or that just doesn’t seem right. I don’t much education and really don’t know how things work with the law but I am not blind and can definately see that this judge is very bias. Let’s hope the jurors can see the same thing

  10. terri white says:

    I read all the comments above. The question I must ask is where in the HELL is our government.For a judge not to allow crucial evidence to be heard is to say the least totally bias!! Seventy thousand women injured,and this information is kept from the jury. To keep the playing field fair. Where was fairness when my body was destroyed? Where was fairness when my mental and emotional state was taken? Mesh is a life sentence. The end to all I knew as joy, comfort , peace and general well being. So many things I wish I could do over. There are NO do over’s here. Ten years later,I cry in pain. Never leave my home,unless it is to see a doctor. I have shut the world out,for my life is gone. Evil lives and thrives in the very souls of those who profess to heal and protect !!

  11. Juror says:

    We might be from WV and dislike unions and lawyers but what’s wrong is wrong. Jo Husky was treated fair. Glad it’s over.

    • Jane Akre says:

      do you mean NOT treated fair? Thank you for your vote on the right side, regardless….hope you weren’t offended. it was not meant to.

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