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From Products Liability Law Daily, November 6, 2015

$1.2M verdict vacated in transvaginal mesh device injury suit

By Kathleen Bianco, J.D.

A $1.2 million jury verdict against Johnson & Johnson and Ethicon, Inc., transvaginal mesh device manufacturer and distributor, was vacated after a Texas appellate court determined that the injured patient had failed to submit sufficient evidence demonstrating that a defect in the product had caused her injuries. Upon review of the evidence, the court concluded that the patient failed to prove an essential element of her product liability claim, that a specific defect in the device, and not simply the device itself, was the producing cause of her injuries. (Johnson & Johnson v. Batiste, November 5, 2015, Fillmore, R.).

Background. In January 2011, Linda Batiste underwent a surgical implantation of a TVT Obturator System (TVT-O), a polypropylene-based transvaginal mesh device that was manufactured and sold by Johnson & Johnson and Ethicon, Inc. to treat severe incontinence. Batiste claimed that she has suffered from groin, pelvic, vaginal, and urethral pain since shortly after the TVT-O was implanted. Batiste has a complex medical history and she has visited numerous physicians regarding her medical condition. Batiste filed suit against Johnson & Johnson and Ethicon asserting strict liability claims of design and marketing defects. She contended that the device was defectively designed because the mesh was heavyweight and contained small pores; was mechanically cut causing it to fray and curl; and the mesh degraded and lost particles after it was implanted. Following a four week trial, a jury rejected Batiste’s marketing defect claim, but found that there was a design defect in the device that was the producing cause of her injuries awarding her $1.2 million in damages. The manufacturer appealed and sought a take-nothing judgment, arguing that Batiste failed to present legally sufficient evidence showing that the device was unreasonably dangerous, there was a safer alternative design, or that a specific defect in the device was the producing cause of her injuries.

Strict liability design defect. To recover on a product liability claim based on an alleged design defect, a plaintiff must show that (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery. The injured patient claimed that her evidence satisfied these requirements because it showed that defects in the device were known to cause particular conditions and injuries, she suffered from those same conditions, and qualified experts testified, based on their review of her medical history, that defects in the device caused her injuries. The manufacturer countered, arguing that the patient only offered evidence that the device itself, rather than a defect in the device, was the producing cause of her injuries. Furthermore, the manufacturer contended that the patient failed to exclude other possible causes for her injuries.

Upon review of the evidence, the state appellate court agreed with the manufacturer, finding that the defect evidence presented by the patient failed to present more than a scintilla of evidence that any of the alleged defects caused her injuries. Consequently, the court reversed the jury verdict and rendered a take-nothing judgment in favor of the manufacturer on the patient’s design defect product liability claim.

The case is No. 05-14-00864-CV.

Attorneys: Richard A. Capshaw (Capshaw & Associates) and Janelle L. Davis (Thompson & Knight LLP) for Linda Batiste. Scott P. Stolley (Jackson Walker LLP) and Stephen Brody (O'Melveny & Myers LLP) for Johnson & Johnson and Ethicon, Inc.

Companies: Johnson & Johnson; Ethicon, Inc.

MainStory: TopStory DesignManufacturingNews EvidentiaryNews MedicalDevicesNews TexasNews

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