Linda Rizzo and her husband Ronald do not have to pay attorney’s fees to C.R. Bard after they dropped their transvaginal mesh lawsuit against the company.
Judge Joseph R. Goodwin denied the move to recoup attorneys’ fees after the Rizzos dropped their case September 20th over her failed Avaulta pelvic mesh (Rizzo et al v. C.R. Bard), which was scheduled to go to trial October 8.
Judge Joseph R. Goodwin dismissed with prejudice the defective product lawsuit against the Murray-Hill, New Jersey-based company.
Generally speaking dismissing without prejudice refers to a procedural problem and allows the plaintiff to refile the case. Dismissing with prejudice indicates a final judgment and disallows them from refilling the case. See definition here.
The Bad News
In the November 5 ruling (Rizzo #363 Order ) – Judge Goodwin, while denying the motion of C.R. Bard asking to be awarded attorneys’ fees, did grant part it in part. The Rizzos must pay Bard $14,096.42 to cover some costs such as filing fees and other pretrial expenses like deposition transcripts and medical records.
Legally, the question was, was Bard considered the prevailing party making it eligible to receive fees and costs? Generally, a voluntary dismissal with prejudice generally means the defendant (Bard) is the prevailing party.
Under federal law, Bard could recover costs for preparing for trial “including fees for obtaining deposition transcripts and medical records,” and that ”the plaintiffs do not dispute the reasonableness of these costs.”
In his ruling Judge Goodwin did not grant attorneys’ fees because he said Bard “cannot argue that it is disappointed with the outcome of this case; Bard did not have to pay a settlement or expend resources at trial.”
The Problem with the Rizzo Case?
According to court documents, Bard said it had reason to believe the plaintiff’s expert witness failed the first-ever examination for board certification in the sub-specialty of Female Pelvic Medicine and Reconstructive Surgery, the results of which were announced on August 26, 2013.
The sub-specialty was established in 2012 and June 2013 was the first ever board certification overseen by the American Board of Medical Specialties. That would mean on the stand, Mrs. Rizzo’s attorney could not call the doctor a “board-certified urogynecologist.”
What’s interesting here is that Bard settled the second transvaginal case it was facing (Queen) in the same courtroom, yet the plaintiffs did not ask to recoup their court costs.
Rizzo had sued C.R. Bard alleging her Bard Avaulta Plus Anterior and Posterior BioSynthetic Support System, used to treat pelvic organ prolapse was defective. Filed December 29, 2009 hers was a multi-count action for negligence, design defect, manufacturing defect, a failure to warn, breach of express warranty, breach of implied warranty, loss of consortium for husband Ronald, and punitive damages.
As of today, November 11, there are 37,247 cases filed in Judge Goodwin’s court to be heard against six mesh manufacturers. That number represents about 4,000 additional cases filed since mid-October.
The final bellwether trial naming C.R. Bard is Carolyn Jones (2:11-cv-00114) scheduled for December 3 in the same West Virginia courtroom. #
US Legal- Dismiss with Prejudice
Linda Rizzo v. C.R. Bard – Document #363