Texas Transvaginal Mesh Trial Alleges Defective Ethicon TVT-O

//Texas Transvaginal Mesh Trial Alleges Defective Ethicon TVT-O

Texas Transvaginal Mesh Trial Alleges Defective Ethicon TVT-O

Linda Batiste v John Robert McNabb M.D. and Ethicon Inc., and Johnson & Johnson.

Jury selection was completed Monday, March 17 in a Dallas courtroom in the case of Linda Batiste v. Ethicon, Johnson & Johnson (13-cv-04800).

This will be the second case that goes to trial in a state court. The case of Linda Gross v. Ethicon concluded in Atlantic City, New Jersey, February 28, 2013 with a jury award of $11.1 million to Ms. Gross for her mesh-related injuries (story here).

The first federal product liability trial against Ethicon, a division of healthcare giant, Johnson &  Johnson, concluded last month with a directed verdict for the company after five days of the plaintiff’s case. (background story here).

Batiste is a resident of Texas. She was implanted with an Ethicon, TVT-O by a Dr. John Robert McNabb at the Baylor Medical Center on January 12, 2011.

TVT-O from TVT Meshed Up Mesh, UK

TVT-O from TVT Meshed Up Mesh, UK

She claims serious bodily injuries including “pain, discomfort, pressure, difficulty voiding urine, continued incontinence, discharge, scarring infection, odor and bleeding.”

She seeks damages for physical pain and mental anguish sustained in the past, physician pain and mental anguish in the future, disfigurement in the past, disfigurement in the future, physical impairment sustained in the past, and in the future, medical care and costs in the past and the future and punitive damages.

Product liability actions allege a medical device was marketed with a defective design, defective manufacture and/or defective or inadequate instructions for use. Batiste alleges negligence, design defect, manufacturing defect, failure to warn, breach of implied warranty and breach of express warranty.

Dr. John R. McNabb

Dr. John R. McNabb

She alleges Dr. McNabb was negligent based on medical malpractice theories that he failed to select and implant the proper medical device to treat her stress urinary incontinence (SUI). She also alleges that he failed to select and perform the proper medical procedure, improperly selected her as an appropriate candidate for implantation, and used the mesh despite the fact that it has a “high failure, injury, and complication rates, fail to perform as intended, required frequent and often debilitating additional surgeries and have caused severe and irreversible injuries, conditions and damage to a significant number of women.”

Batiste also says Dr. McNabb failed to obtain informed consent.

Originally Batiste included Dr. McNabb in her action alleging medical malpractice.  The physician has early onset Alzheimer’s disease and the state court determined on October 11, 2013 that he was unable to provide competent testimony in the case. He was dismissed from the action which is now a product liability case.

The Honorable Ken Molberg

The Honorable Ken Molberg

Judge Molberg

The case will be heard by The Honorable Judge Ken Molberg. Texas is one of a handful of states that selects its judges in partisan elections and Judge Molberg was the democratic nominee of the 95th civil district court of Dallas County, Texas.

Judge Molberg says he doesn’t let partisan politics color his view of the law once elected. There is no such thing as partisan justice, nor should there be, he said in the 2008 commercial he shot before the election.

“Every citizen is entitled to know there is a place that he or she can go where they will be treated fairly and equally regardless of their position in life.”~ Judge Molberg

His wife, Linda, is a registered nurse.

Aaron Horton, The Mesh Warrior reporter

Aaron Horton, The Mesh Warrior reporter

The Mesh Warrior, Aaron Horton is sitting in the courtroom at this writing and should have a write up on the opening arguments from both sides. Stay tuned.

Learn More:




Mesh News Desk, February 28, 2013, It’s Over, Linda Gross $11.1 Million here.

Mesh News Desk, One Hand Tied Behind Their Back, Commentary, March 3, 2014 here

Mesh News Desk, Lewis v. Ethicon Trial is Over! Judge Grants Ethicon’s Motion to End Trial, February 18, 2014 here

By | 2014-03-18T13:14:09+00:00 March 18th, 2014|Legal News|5 Comments

About the Author:

I’m National News Editor, Jane Akre and I began Mesh Medical Device News Desk aka Mesh News Desk (MND) in the summer of 2011 just after the Food and Drug Administration issued an explicit warning to the public that complications associated with surgical mesh used for prolapse repair (POP) and incontinence (SUI) are NOT rare! That was the starting point for the litigation you see today and thousands of lawsuits have been filed by women whose lives have been altered, some permanently, by the use of this petroleum-based product.


  1. James Falasco March 18, 2014 at 3:00 pm - Reply

    Since this has switched from malpractice to liability the sole metrics will then be the quality of the staples and polyurenthane . Its key to understand how quality was checked and measured. The defense will maintain best practices were utilized and hide behind 510-K. If the Mesh community wants to stage a counterattack they need to now as the defense is holding the high cards. By getting the malpractice taken off the table the deck is now stacked in their favor. When will the mesh community wake up to the quality counterattack plays they could be running to strike at the “best practices” arguement.?

  2. James Falasco March 18, 2014 at 3:05 pm - Reply

    The defense has already won half the case by getting malpractice taken off the table. They will defend the quality aspect citing “best practices” under 510-K were used. When will the mesh community mount a counterattack on this arguement citing the quality of the staples and polyurethane and how indeed were they checked for said quality. Focusing on quality and lack there of is the key but it seems no one knows how to pursue that line of questioning? Why doesnt the mesh community seek advice from quality control experts?

    • Jane Akre March 18, 2014 at 10:24 pm - Reply

      And you advice is? Please expand upon that and remember this is an injured group with few resources so gaining any organization is a difficult task… but your words are valued and many are willing to listen and learn…~ ja

  3. Mary pat March 18, 2014 at 5:21 pm - Reply

    Does anyone know how Judge Goodwin got his job? It would be interesting to see a similar story about him.

  4. Jaramillo March 19, 2014 at 6:54 am - Reply


    when will the mesh organization wake up? Really? It appears to me you have information to share. You won’t come right out and provide it. You are eluding there is evidence that can be used, but have you attempted to meet with anyone to present it? James, are you scared if you are a whistle blower you will be retaliated against? Perhaps you are like us. Do you live in a world of fear? You throw out an idea of counter defense. A tidbit. but you are elusive, judgemental, condescending. If you are here to help, then do so. If you have facts, research, information that attorneys are not using then help. If you, like us, are scared, then go under ground to get the information out. Have you approached an attorney with this tid bit of information or are you sitting back and waiting for them to fail on our behalf? Help me understand, why are you on this site? Do you have concern for how this product is used? Do you have concern for those that are injured and don’t really understand why our bodies are toxic? Do you know dark secrets regarding quality control? Is it haunting you that you have not divulged information? We have enough proffessionals judging us., We are looking for advocates, not perpetrators. Come on James, what role do you want to take?

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