Boston Scientific.
Boston Scientific. (Courtesy photo)

In a trial involving four women suing over an allegedly defective transvaginal mesh device, a Miami jury was faced with an assortment of claims. Some of the women felt like they had a ball between their legs. Some had pain during sex, while others didn’t. They all went to different doctors, at different times, for different surgeries.

But the jury’s verdict showed little difference. Each woman got more than $6.5 million.

The identical awards are proof that jurors were confused when dealing with a trial that consolidated the claims of so many women, wrote a lawyer for Boston Scientific Corp., in his appeal of the verdict — a total of $26.7 million — to the U.S. Court of Appeals for the Eleventh Circuit. Defendants, he wrote, don’t get a fair shake when it comes to so-called consolidated trials. It’s the same argument he made this year in a separate appeal Boston Scientific has made before the Fourth Circuit over an $18.5 million mesh verdict that involved four women.

“The verdicts confirmed the jury confusion,” wrote Daniel Rogers, a Miami partner at Shook, Hardy & Bacon, in both of Boston Scientific’s opening briefs, filed in October and March. “A properly-functioning jury should have arrived at damage awards tailored to each plaintiff’s circumstances. That did not occur.”

Daniel B. Rogers, of Shook Hardy & Bacon.

Consolidated trials, though not unheard of, have become increasingly common as judges have sought to come up with ways to resolve some of the nation’s largest multidistrict litigation dockets. In addition to pelvic mesh, which now numbers nearly 100,000 cases before a federal judge in West Virginia, Johnson & Johnson’s DePuy Orthopaedics Inc. raised similar complaints about consolidated trials in Texas that resulted in hip implant verdicts of $502 million and $1.04 billion last year.

Plaintiffs have argued that consolidated trials are efficient and procedurally proper under Rule 42 of the Federal Rules of Civil Procedure, which gives a judge the discretion to join cases for trial that involve “common question of law or fact.” Judges also can instruct jurors to consider the cases separately. Attorney W. Mark Lanier, of The Lanier Law Firm in Houston, who represents the plaintiffs in the two hip implant appeals, now before the Fifth Circuit, said the attack on consolidated trials is really a defense strategy to make it harder economically for plaintiffs to bring cases. It’s also aimed at salvaging a defense that gets lost in consolidated trials.

“One of the arguments the defendants like to make in these cases is that this is the one rare exception,” Lanier said. “But when you’ve got five or 10, and you have to find some bizarre reason for each one, it belies credibility with the jury, and the jury sees through it.”

It’s also the significant damage amounts. The Boston Scientific verdicts are among largest in mesh cases to date, most of which have involved the claims of one woman. But U.S. District Judge Joseph Goodwin of the Southern District of West Virginia consolidated cases against Boston Scientific for trial based on what he considered to be similar design defect claims and residences of the plaintiffs.

That shouldn’t have happened, Rogers wrote in Boston Scientific’s appeal briefs. “Even the most attentive juror could not have kept these details straight and individually evaluated each plaintiff’s claims,” he wrote.

Moreover, in consolidated trials, jurors have a propensity to assume the existence of a defect and hear intermingled evidence, he wrote. Jurors in the Eleventh Circuit case, for instance, saw graphic photos of one woman’s bloodied mesh device — “gory evidence” that had no bearing on the claims of the other plaintiffs, he wrote.

Rebecca Vargas, of the Law Office of Kreusler-Walsh, Compiani & Vargas in West Palm Beach, Florida, who represents the plaintiffs in their response, brushed off those concerns, noting that jurors also saw a video of the surgery.

“The women in our case suffered very similar injuries and that’s why the damages amount turned out to be similar,” she said.

The Eleventh Circuit heard oral arguments in April.

Scott Love, of Clark Love Hutson.

Scott Love, a partner at Houston’s Clark, Love & Hutson, made similar arguments in his appeal filed for the plaintiffs in the Fourth Circuit case. The Fourth Circuit has tentatively scheduled oral arguments for October.

Boston Scientific raised several other issues in its appeals. But in a Feb. 22 amicus brief in the Fourth Circuit case, the Product Liability Advisory Council focused on the use of consolidated trials, which it called a “troubling development in multidistrict litigation involving product liability claims.”

“This will continue to pop up maybe not just in medical devices but in other mass tort product liability cases,” said the attorney who filed the organization’s amicus brief, Terri Reiskin, a member of Dykema Gossett in Washington, D.C.

In fact, Goodwin is ironing out a consolidated mesh trial involving 24 women against Johnson & Johnson’s Ethicon Inc. unit. In a Feb. 6 motion to sever, Ethicon argued that the consolidated trial would be unfair.

“The goal of the parties and the court for Ethicon’s transvaginal mesh litigation should be an uncluttered presentation of the issues that yields fair verdicts,” wrote Ethicon attorney Christy Jones of Butler Snow in Jackson, Mississippi. “Consolidated trials in these cases will not achieve this goal.”

Goodwin denied the motion on Feb. 15. But he also continued the trial, which had been scheduled for March 6.

In the hip implant cases, U.S. District Judge Ed Kinkeade of the Northern District of Texas on June 28 rejected DePuy’s motion for a new trial following the $1.04 billion verdict. DePuy, represented by Michael Powell, of counsel at Locke Lord in Dallas, had argued the award “confirms the extreme prejudice and confusion resulting from the court’s erroneous decision to consolidate these six cases for trial.”

But Kinkeade wrote: “The court finds the consistent damages awards reflect the similarities in the cases chosen for consolidation rather than unfairness or prejudicial error.” DePuy’s appeal before the Fifth Circuit is due July 31.

DePuy made a similar argument in a motion for new trial following the $502 million verdict, which involved five plaintiffs, but dropped it on appeal, focusing instead on “inflammatory rhetoric” the jurors heard. Lanier said those issues won’t be part of the $1.04 billion appeal and predicted that DePuy would bring up the consolidated trial argument once again.

“The first time around, this was on the cutting-room floor,” Lanier said. “But as their arguments fall away, this one rises.”