A New Jersey state judge in Bergen County denied a motion by C.R. Bard to throw out a $68 million verdict awarded to a woman injured by defects in the company’s pelvic mesh products.
Bard moved for a judgment notwithstanding the verdict, a new trial and for remittitur on damages, arguing that the evidence didn’t support the verdict and that the damages award was excessive. But Superior Court Judge James DeLuca on Oct. 11 denied the company’s motions, leaving the verdict intact. The company is expected to file an appeal.
The ruling leaves standing a jury’s award from April of $23 million in compensatory damages to plaintiff Mary McGinniss, $10 million in damages for loss of consortium to her husband, Thomas, and $35 million in punitive damages. The jury made the award after hearing that McGinniss had to undergo multiple surgical procedures and suffers permanent pain as a result of defects in Bard’s Avaulta Solo Prolapse Repair System and its Align Transobturator Stress Urinary Incontinence Repair System. The jury found that the Bard products were defectively designed and failed to display adequate warnings.
Adam Slater of Mazie, Slater, Katz & Freeman in Roseland, who represented McGinniss, called the trial “a very clean trial. Judge DeLuca spent an extraordinary amount of effort deciding the legal issues. I think the rulings he made are very solid.”
The McGinniss case was the first bellwether trial over Bard’s pelvic mesh products in New Jersey’s mass tort program, where 131 other cases are pending. Bard’s second pelvic mesh trial in a New Jersey court, in which Sandra Rios alleges injuries similar to those claimed by McGinniss, is set to begin Nov. 26.
Bard was represented in the McGinniss case by Lori Cohen of Greenberg Traurig in Atlanta. A company spokesman, Troy Kirkpatrick, said in a statement: “We continue to believe there were fundamental errors of law made during the trial, and we will pursue all our appellate rights. Beyond that, we don’t comment on pending legal matters.”
In addition to the 131 cases pending against C.R. Bard, another 9,187 are pending in New Jersey against Ethicon, a subsidiary of Johnson & Johnson.
Ethicon has seen two pelvic mesh trials in New Jersey’s mass tort program. The company was hit with a $15 million verdict in December 2017 and another for $11 million in 2014.
Pelvic mesh suits have also resulted in dramatic victories for plaintiffs in other jurisdictions. In September, a Philadelphia jury returned a $57.1 million verdict against Ethicon in Ebaugh v. Ethicon. That verdict included $7.1 million in compensatory damages and $50 million in punitive damages.
Slater said the pelvic mesh litigation has shown the manufacturers displayed “indefensible” conduct in their sale of the product without any clinical studies in human subjects. He said trials have revealed pelvic mesh manufacturers’ actions were aimed at “chasing market share instead of acting in a conservative manner to make sure patient safety comes first.”
The products are intended to treat prolapse of the pelvic organs, in which the organs slip out of place. But Slater said women who suffer from prolapse “don’t need a massive mesh scaffold built into their pelvis to treat it,” adding that defendants’ own internal documents called the products “overengineered.”