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.
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.
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 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.
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.