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From Products Liability Law Daily, October 3, 2014

$73.5M jury verdict against Boston Scientific slashed to $34.6M in transvaginal mesh case

By Pamela C. Maloney, J.D.

A final judgment in the amount of $34,645,000.00 was entered by a Texas state trial judge against Boston Scientific Corp., reducing the jury’s award of $73,465,000 based on its determination that the company was negligent in the design and marketing of one of its transvaginal slings. The judge recalculated the jury’s punitive damages award of $50 million, cutting it to $11,180,000, in accordance with the state’s statutory cap on punitive damages. In addition to the punitive damages, the final award included approximately $22 million dollars in compensatory damages for a patient’s injuries and another $1.5 million for the patient’s husband (Salazar v. Lopez, October 2, 2014, Molberg, K).

Background. Martha Salazar had been implanted with Boston Scientific’s Obtryx Transobturator Mid-Urethral Sling after it had been recommended by her doctor as an appropriate and safe treatment for her stress urinary incontinence. The patient’s action, brought by both the patient and her husband, Felix, against the manufacturer, among others, alleged that as a result of the implantation of the device, Ms. Salazar “suffered and will continue to suffer serious bodily injuries,” which she alleged included pain, discomfort, pressure, difficulty voiding urine, continued incontinence, discharge, scarring, infection, odor, and bleeding.

Jury findings. The jury had found that Boston Scientific was negligent in designing the Obtryx at the time it left the company, and that it was that negligence that was the proximate cause of injury to the patient. A “design defect” was defined for the jury as a condition of the product that rendered it unreasonably dangerous as designed, “taking into consideration the utility of the product and the risk involved in its use.” In addition, it was required that for a design defect to exist, there had to have been a safer alternative design in January 2011. The jury decided that there was.

The jury also determined that Boston Scientific was negligent in marketing the Obtryx at the time it left the manufacturer and that this negligence, too, was a proximate cause of the patient’s injuries. The jury instructions defined a “marketing defect” in the product as the failure to give adequate warnings of the product’s dangers that were known or should have been known, or the failure to give adequate instructions to avoid such dangers, and that the failure rendered the product unreasonably dangerous as marketed.

Finally, the jury found clear and convincing evidence that the harm to the patient resulted from gross negligence.

Exemplary damages reduction. The trial judge included all the damages awarded by the jury in its September 8 verdict. However, Texas Civil Practice & Remedies Code §41.008 provides that exemplary damages may not exceed the greater of: (1) two times the amount of economic damages plus and equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000.

In accordance with the statutory damage cap, the judge calculated exemplary damages as follows: (1) economic damages of $5,215,000 x 2 = $10,430,000 plus (b) noneconomic damages capped at $750,000 for a total of $11,180,00. The final award for exemplary damages reflects a difference of $38,820,700 from the amount awarded by the jury.

Compensatory damages. The breakdown of the jury’s award for compensatory damages, which amounted to nearly $22 million—was as follows:

  • Past physical pain and mental anguish: $1.5 million

  • Future physical pain and mental anguish: $10 million

  • Past physical impairment: $750,000

  • Future physical impairment: $5 million

  • Future reasonable expenses of necessary medical care: $3 million

  • Future loss of earning capacity: $1.7 million

The jury also awarded approximately $1.5 million to the patient’s husband, broken down as follows:

  • Past loss of household services: $15,000

  • Future loss of household services: $500,000

  • Past loss of consortium: $250,000

  • Future loss of consortium: $750,000

The case number is DC-12-14349.

Attorneys: Tim K. Goss (Freese & Goss, PLLC) for Martha Salazar. Jennise W. Stubbs (Shook, Hardy & Bacon, LLP), and Maria K. Karos (Sedgwick LLP) for Jorge Francisco Lopez, MD, Columbia Hospital at Medical City Dallas Subsidiary, LP, and Boston Scientific Corp.

Companies: Columbia Hospital at Medical City Dallas Subsidiary, LP; Boston Scientific Corp.

MainStory: TopStory MedicalDevicesNews DesignManufacturingNews WarningsNews DamagesNews TexasNews

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