Less than two weeks after Boston Scientific prevailed in a transvaginal mesh lawsuit in Massachusetts, a Dallas jury hit the company for $73 million. The verdict came relatively quickly; according to media sources, the jury was in deliberation for no more than three hours - and the verdict was unanimous.
More than two-thirds of that transvaginal mesh lawsuit award was awarded for punitive conduct.
One significant aspect of the award is that over $1.5 million was awarded to the woman's husband for “loss of consortium” (when a spouse is no longer able to engage in sexual relations) and “loss of household services.” This result is different from an earlier trial award against C.R. Bard in the Cission case, where the husband was not awarded loss of consortium damages, even though the verdict was in excess of $2 million.
Another interesting aspect of this particular case is the fact that it was tried in Texas state court. The majority of these actions have been consolidated before a federal judge in West Virginia, where the process has been slowed down due to the massive number of cases filed (well in excess of 50,000). The few cases that make it to local civil courts tend to go faster, however the state court system is not without its downfalls. For example, Texas law applied in this Texas state court case – which is not necessarily a good thing for the plaintiff. Texas law makes cases very difficult for plaintiffs to prove their case by imposing relatively harsh standards on important legal issues such as surviving statutes of limitations, proving design defects, and actually keeping the trial damages. According to one of the plaintiff's attorneys, the $73 million award will be slightly less than half of the jury award, once Texas law is applied. Boston Scientific will most likely file an appeal – so the battle is not over.