$74 Million Verdict Gets Attention of Pelvic Mesh Manufacturers
Settlements and jury verdicts against pelvic mesh device manufacturers have started rolling in. With a couple of technical victories for the defendants and some results in the low millions, it looked like the device makers may be content to continue litigating the cases as they come. Last month, however, a Dallas jury hit device maker Boston Scientific with a $73 million judgment for marketing a device it knew to be defective and hiding company concerns over its defects. Perhaps the manufacturers will rethink their strategy and agree to a global settlement of these claims while they can still afford to do so. Even before this latest verdict, one company had agreed to settle all the claims against it for $830 million. That amount may be looking like a bargain to Boston Scientific right now.
Pelvic mesh, also known as vaginal mesh, transvaginal mesh, midurethral sling and other names, is a product surgically implanted in some women to treat conditions such as stress urinary incontinence and pelvic organ prolapse. Women implanted with the devices have suffered complications including infection, pain, bleeding, painful intercourse, and erosion of the device, requiring painful and debilitating revision surgeries.
Tens of thousands of cases have been filed against seven different pelvic mesh manufacturers, including Ethicon (a division of Johnson & Johnson), Endo International/American Medical Systems (AMS), Boston Scientific, and C.R. Bard. Over 66,000 of these cases have been consolidated in federal court and are being managed by a federal judge in West Virginia in what is known as Multidistrict Litigation, or MDL.
A handful of cases have been settled and tried to judgment in courts across the country over the past couple of years, including West Virginia, Missouri, New Jersey, Texas and California. Most of those outcomes ranged from roughly $1 million to $5 million. Last year in New Jersey, a jury awarded a woman $11.1 million, of which $7.76 million was for punitive damages.
Punitive damages are a big part of the reason this most recent verdict was so high. Plaintiff’s lawyers introduced an internal company email at trial where a Boston Scientific executive referred to a company-funded study which cautioned against the use of its Obtryx sling. The executive is quoted in the email as stating that the study would not be “useful to the sales force” in defending business or selling more slings. The email author also wrote, “I certainly wouldn’t hand this [study] out to any physicians.” The jury slapped the company with $50 million in punitive damages for its misconduct. Even without the punitive damages award, the jury verdict of $23 million for compensatory damages (medical expenses, pain and suffering) was still high enough to make the medical device manufacturers stand up and take notice.
Last year, Endo/AMS agreed to settle an undisclosed number of the 19,000 lawsuits against it for $55 million. This June, AMS decided to settle all the claims against it for $830 million. This may have seemed like a lot of money at the time, but given the recent $73 million verdict in just one case against a single plaintiff, Boston Scientific may soon be wishing it had gotten off so cheaply.