Last Thursday, an eight-member jury in a New Jersey state court awarded $23 million in compensatory damages to Mary McGinnis after finding that a pelvic mesh manufactured by C.R. Bard, Inc. was the cause of her pain and suffering. Her husband, Thomas McGinnis, was awarded an additional $10 million for loss of consortium. One day later, on Friday, April 13th, the jury assessed an additional $35 million in punitive damages, citing “malicious intent” or “wanton and willful disregard” for the plaintiff's health in bringing the product to the market in the first place.
Ms. McGinnis, now 70, was implanted with an Avaulta pelvic mesh and an Align Transobturator in March 2009 for the treatment of her stress incontinence. In their closing remarks, counsel for the plaintiff argued that the implants had not been properly tested and were unsafe. Defense attorneys argued that the Avaulta had been tested “extensively,” and that McGinnis' pain and discomfort was due to arthritis affecting her hips and upper legs. According to Bard attorney Lori G. Cohen, McGinnis had suffered from arthritis for years prior to having the mesh implanted, having been seen by physicians for the condition nearly 180 times over the years. Speaking with Legal Newsline, Cohen said, “They have to prove that C.R. Bard acted unreasonably in the design and failure to warn. Did they prove causation and harm? In our opinion, absolutely not.”
On the issue of loss of consortium, Cohen argued that it was due to Ms. McGinnis' untreated prolapse condition, not the mesh. She also attributed McGinnis' pain to mistakes doctors had made both during the procedure and subsequent surgical attempts to remove the implant.
The jury disagreed. Plaintiff's attorney Adam Slater argued that Bard was aware of the defects inherent in their product. Referring to the mechanism by which the mesh was attached, he added, “They had no evidence how the arms would perform and they were so tight...during a vaginal exam, the pain was so bad, Mary cried out on the table. That is the case in a nutshell.” He pointed out that the “arms” of the device had indeed contracted after implantation, which was the direct cause of Ms. Ginnis' debilitating pain. According to Slater, C.R. Bard employees had been aware of the problems and dangers of the product since September 2008 – six months prior to McGinnis' procedure. During his closing argument, Slater said, “Why did this all happen? Because they were chasing a market.”
Bard recalled the Avaulta product in 2012.
In the end, the jury sided with the McGinneses, finding for the plaintiffs 7 to 1. The following day, the jury deliberated for only three hours before returning with the punitive award.
This is the third loss for Bard in ongoing Avaulta litigation. In 2012, the company was hit with a $5.5 million verdict in California. In 2013, another Avaulta lawsuit in West Virginia ended in a verdict for the plaintiff for $2 million. That decision was upheld after Bard appealed the case to a federal court.
Cohen continues to maintain that her client is not liable for McGinnis' injuries and has stated that Bard will be appealing the case.