Mesh Medical Device News Desk, April 24, 2018 ~ You may have wondered what ever happened to Mary Dixon, the woman who was fighting for her late mother, attempting to take her wrongful death case against mesh maker Ethicon forward in federal court in Charleston, WV?
On April 18, Judge Goodwin, overseeing mesh litigation in West Virginia, lifted a stay on the case. See it here: Dickson v Ethicon stay lifted, April 18 2018. Mary may proceed Pro Se, that is, without an attorney or, “on one’s own behalf.”
But Mary is not a lawyer and needs help to move forward. Judge Goodwin has encouraged her to find a law firm to prove her mother, Veda Mae Smith, died from unrelenting infections from two Ethicon meshes- the TVT Blue and TVT-O.
See Part One of her story here.
The good news is that Mary Dickson has her mesh case in Wave 7 in the Ethicon MDL before Judge Joseph Goodwin. Dickson v Ethicon, No. 2:15-cv-02800.
It and 150 others are set for trial in May 15, 2018, in this transvaginal mesh multidistrict litigation (MDL) which is slowly being whittled down from a high of 104,000 plaintiffs against seven mesh manufacturers. See PTO_269 Setting Wave 7 for trial May 2018
Vada Mae Smith died September 13, 2016. She was 73 years old. The cause of death was multisystem failure and interstitial cystitis, an untreatable bladder infection that was resistant to antibiotics. Vada had undergone so many blood transfusions that her blood type could no longer be matched.
Mary is today conferring with the State Attorney of Greenbrier County, West Virginia to explore what went wrong – why was Vada implanted with a TVT Blue before it was even cleared by the FDA for market, why was the case dropped by two law firms who knew it was set for trial but didn’t inform Mary, and why was autopsy evidence in the case sent to third parties and by whom?
And Mary is still seeking representation to take her civil case forward.
Vada Mae Smith
Vada suffered in and out of nursing homes and hospice for about 15 years with this problem after the implantation of a TVT (Tension-free vaginal tape) Blue in 2001 and a TVT-O in 2006, both made by Ethicon, a division of Johnson & Johnson.
Vada never knew what was causing her problems until she saw the ads on television, a not-so-uncommon revelation to many women who have been implanted with transvaginal mesh without their knowledge.
“I think that’s what I have,” she informed her daughters, Mary and Ruth, (now deceased). Vada did not understand, nor had she been told she had been implanted with two polypropylene medical devices to treat incontinence and pelvic organ prolapse.
For many years the daughter tried to have doctors identify her pain, the reason her legs collapsed, the reason the infections and a bad smell were unrelenting. There were no answers.
The surgeries she did have, to spot weld her urethra, for vaginal reconstruction and to have an interstim implanted, no one found the mesh.
But Mary collected more than 3,000 pages of her mother’s medical history and located the time, doctor and date of the two implants.
Mary found two law firms to represent her.
She insisted they revise the complaint to include new information she found including:
- The Tension Free Vaginal Tape (TVT) Blue System implanted in Vada in 2001 would not be cleared by the FDA’s 510(k) process for another 70 days. It was therefore considered “investigational” under the Food and Drug Administration’s own rules and should not have been marketed or used.
- A second mesh had been implanted, the TVT-O, and Mary wanted it added to the complaint.
- Mary also found two hospice referrals with UTI (urinary tract infections) that were antibiotic resistant and she thought it was very important information a jury should hear.
The original complaint did not contain the additional surgery Vada underwent in September 2002 to fix her prolapse, two hospice recommendations that can be considered a cause of death; the 20 transfusions to address mysterious rectal and vaginal bleeding, transfusions that made her blood type difficult to match; and the fact that antibiotics could no longer address her chronic UTI’s.
“All I wanted for them to do was revise the complaint to have the additional information I found,” she says to MND today.
One lawyer told her he would amend the complaint if Mary prepared a chronology, she says.
Mary parted ways with her lawyers.
She plans to take the case of personal injury, wrongful and defective design forward as a Pro Se litigant. and with a lift on the stay by Judge Goodwin, she can, though Judge Goodwin warns,
“Nevertheless, the court still wishes to make abundantly clear that it strongly advises the plaintiff against continuing in this action without counsel. Although every person has the right to self-representation, experience informs me that even the most earnest of Pro se litigants struggle to advance his or her interests in court appropriately. “
Pro Se Litigant
As a Pro Se litigant, Mary recently received 15,000 documents from the Marker Group, which retrieves documents preparing for litigation.
Johnson & Johnson lawyers have taken notice.
The implanting doctor, Dr. Lassere, had been set for deposition by J&J last November. Mary wants to be alerted to the new date. She wants to depose the doctor who did Veda’s autopsy who found the mesh. The scar tissue was so dense he could barely retrieve the remnants, but it was there.
Ethicon’s representative, Dr Juan Felix, was present at Vada’s autopsy and even took custody of some slides and cuts. He is represented by Butler Snow, one of many law firms representing Ethicon.
Some of the autopsy results ended up with Biomet, which designed and markets medical devices. Mary doesn’t know why and her lawyer denied that happened even though she has emails from the firm proving Biomet was involved.
Mary will have to prove the TVT-Blue was defective in design, that Ethicon was using it before it received FDA clearance and that the TVT-O is also defectively designed and that Ethicon breached its warranty to users.
She has to prove there was an alternative design available. She has to prove that the meshes implanted in her mother caused her death, and that J&J destroyed documents that were not supposed to be destroyed and were on a litigation hold for use in transvaginal mesh cases.
It will cost money to fly in experts, who will want to be paid. Many have already appeared in other trials and can be introduced on videotape.
A tall order for a woman who graduated high school and used to work as a bartender.
“The mesh is still being implanted by J&J more will suffer because of it. I can’t see just being discouraged from telling the truth. That’s what the court system is for.
“I promised my mom I would tell it. She asked me to file the lawsuit. I knew nothing about mesh. She was told it was bladder lift. A new type of bladder lift, it was a mini-lift. She never had informed consent and never signed any papers.” ###
Dickson Doc #48 emails back and forth now part of her case before Judge Goodwin
See a court Q and A on Pro Se Litigation
Read Veda Mae’s Story here, Part One