At the time, it was the highest award ever given a woman injured by pelvic mesh. Now that it has been reduced in half, to $34.6 million, it remains the highest award ever in transvaginal mesh litigation.
The Dallas trial of Martha Salazar resulted in an unprecedented $73.4 million jury award to Mrs. Salazar. The Dallas real estate executive had been implanted and injured by an Obtryx sling made by Boston Scientific. The jury found the implant, used to treat urinary incontinence, was defective in its design.
Due to Texas law, that jury award has been slashed to $34.6 million. You can thank Texas law that caps jury awards, which on the surface seems to be a slap in the face of the jury system.
Originally the jury determined Mrs. Salazar should be awarded $23 million in compensatory damages and $50 for punitive damages. The Natick, Mass.- based medical device company was found to be grossly negligent in marketing the polypropylene mesh sling.
However, under Texas law, established in the rush to impost tort reform measures on the public, punitive damages are limited to no more than two times the compensatory or economic loss plus up to $750-thousand in non-economic losses, reports Reuters.
Judge Ken Molberg, who was the sitting judge during the trial last month, was forced to reduce the punitive damages to just over $11 million. The company announced it planned to appeal the verdict. There is no word on whether it will appeal the reduced amount, though that is expected.
This was the third product liability transvaginal mesh trial for Boston Scientific. The first two were heard in Massachusetts and resulted in losses for the plaintiffs.
There are more than 23-thousand cases pending against Boston Scientific, according to its latest Securities and Exchange report, filed in June. Boston Scientific (BSX) the third largest maker of polypropylene pelvic mesh behind Ethicon (Johnson & Johnson) and AMS (Endo).
Boston Scientific still sells Advantage Fit, Advantage, Lynx, Obtryx, Solyx, slings used to treat incontinence, according to its website here.
The women allege the mesh is defectively designed and that doctors did not receive complete instructions about the risk, therefore, they could not inform their patients. Complications include chronic pain and infection, mesh migration, autoimmune issues and pudendal nerve damage, among other problems. The plaintiffs allege the company knew the mesh was defective but continued to sell it anyway and to train doctors on use of the mesh even though some unqualified doctors were characterized as “low hanging fruit” by Boston Scientific.
Boston Scientific will face four plaintiffs who will have their actions consolidated and tried at one time in a federal court in Miami beginning November 3.
According to its latest SEC report:
“We intend to vigorously contest the cases and claims asserted against us; however, the final resolution is uncertain and could have a material impact on our results of operations, financial condition and/or liquidity.”
Boston Scientific and the Plaintiffs began discovery on 200 defective product cases grouped into Wave 1 and Wave 2. They were selected 50 cases at a time beginning last January, with another 50 selected in May. Plaintiffs have until this month to disclose experts and their reports that will be used in the trials. Expert discovery is set to close in January 2015.
The case is Salazar v. Lopez, District Court for Dallas County, No. DC-12-14349.#
Mesh News Desk – Attorney Tells MND About $73 Milion Jury Verdict for Salazar
Reuters, Damages Slashed to Half $34.6 in Salazar Case, Oct 3, 2014
Boston Scientific, SEC 10-Q Quarterly report, June 2014
Mesh News Desk, Boston Scientific Must Pay Salazar $73.5 Million, September 8, 2014