We will never know just how much Wanda Queen was offered by C.R. Bard to settle her defective Bard Avaulta Solo transvaginal mesh lawsuit.
All we do know is that on the morning that opening arguments were set to be heard, August 21, in the Charleston, West Virginia federal court, but the principal attorneys were behind doors. Everyone looked around for an answer as to why the case was not beginning. A few inside the courtroom knew. When Judge Joseph R. Goodwin emerged with the plaintiff and defense legal teams, he announced that a settlement had been reached.
Generally the plaintiff is barred from disclosing any settlement amount and the defendant doesn’t want to reveal the number or admit any liability.
Plaintiffs in these transvagainal mesh bellwether cases have sued over a defective device, a failure to warn the implanting physician as well as loss of consortium for the husband. To date, Bard has paid more than $5.6 million in damage awards, not including the Queen case.
What we do know about the plaintiff might shed some light on why the New Jersey-based mesh manufacturer chose to settle. After the first federal trial of Donna Cisson ended with a jury verdict for the plaintiff and a $2 million award in compensatory and punitive damages, Bard knew it had an uphill battle with the second case.
In the Cisson case, jurors had decided that the Bard Avaulta mesh kit was defective and that her doctor had not been properly warned of complications. In other words, the patient would not be properly warned either.
Also consider the numbers. While Mrs. Cisson, 55, worked in hospice as a nurse in Toccoa, Georgia, Mrs. Queen was the president of a bank in a major city reportedly making a six-figure income. She had at least ten more years of future earnings but was debilitated by the transvaginal mesh that had been placed in her pelvic region to shore up organs that were falling with gravity.
In coming to a damage award, jurors are asked to consider how many productive years someone might have in the workplace. Additionally, Queen had six surgeries and likely is facing more to try and remove the Bard Avaulta polypropylene transvaginal mesh, which is intended to be a permanent implant.
A spokesman for Bard, Scott Lowry, told Bloomberg that the company intends to proceed with lawsuits and will consider each on its own merit. In other words, the Queen settlement is not a forecast for things to come, according to the manufacturer.
The next product liability trial naming C.R. Bard is scheduled for October 8 and the one after that for November 4. These are bellwether cases designed to test legal theories and how jurors will respond. After that, a series of transvaginal mesh bellwether trials will begin naming mesh maker, American Medical Systems.
The only other case filed against Bard that has gone to trial occurred in California state court in June 2012 where plaintiff, Christine Scott, and her husband were awarded $5.5 million. That jury award includes a claim against her implanting physician for medical malpractice, which he lost. So far Bard has not successfully litigated any of its transvaginal mesh claims.
Bard is facing more than 8,000 claims over the Avaulta mesh, which it’s since taken off the market after women claimed it left them in constant pain as the mesh migrates, becomes infected and perforates organs and nerves. Aside from the lawsuits consolidated in federal court in West Virginia, there are thousands filed in state courts around the country.
Johnson & Johnson, Covidien, Cook, American Medical Systems, Boston Scientific and Bard have more than 28,000 lawsuits filed in the same federal court, all claiming the mesh is a defective product that should be removed from the market.