An $18.5 million Boston Scientific pelvic mesh award granted three years ago has been upheld on appeal.

Pills In Man's Hand

The Fourth Circuit Court of Appeals has rejected Boston Scientific's attempt to overturn an $18.5 million verdict, rendered over 3 years ago in a four-plaintiff pelvic mesh trial, Law360 reports. On February 6, 2018, an opinion authored by Circuit Judge J. Harvie Wilkinson affirmed the multi-million dollar awards granted to two women who claim to have suffered serious injuries after receiving Boston Scientific's Obtryx Transobturator Mid-Urethral Sling System. The case's two other plaintiffs had already settled with the company out of court.

Federal Appeals Court Upholds Pelvic Mesh Verdict

In 2014, four women who sustained severe complications after being implanted with Boston Scientific's Obtryx Transobturator Mid-Urethral Sling System were awarded between $3.25 and $4.25 million each by a jury in the US District Court of West Virginia.

While two of the women subsequently reached out-of-court settlements to resolve their portions of the case, Boston Scientific appealed the lower court's verdict with respect to the remaining plaintiffs, bringing the case to the US Circuit Court of Appeals for the Fourth Circuit.

BS Contests Trial Consolidation, Evidence Admission

In court filings, Boston Scientific contested the jury's findings, arguing in part that the lower court's decision to consolidate four similar pelvic mesh cases for trial had confused jurors and made the trial unfair.

The company also disputed several evidentiary findings,including the introduction into evidence of a Material Safety Data Sheet (MSDS) for Marlex, the polypropylene out of which Obtryx pelvic mesh implants are made. Crucially, the MSDS for Marlex contains a warning against using the material "in medical applications involving permanent implantation in the human body," Judge J. Harvie Wilkinson noted in his opinion for the Fourth Circuit.

In its appeal, Boston Scientific also argued that the verdicts were based on insufficient evidence and contested punitive damages awards, between $3 and $4 million for each plaintiff, saying they had been granted due to an erroneous jury instruction.

Fourth Circuit Affirms Consolidation

The Fourth Circuit Court of Appeals rejected each of these four arguments in turn, affirming the verdicts. To begin with, the Appeals Court found that it was perfectly reasonable for the lower court to consolidate the four pelvic mesh cases for trial, seeing as they shared "many common questions of law and fact."

Each plaintiff had received an Obtryx device manufactured by Boston Scientific after being diagnosed with stress urinary continence. Each woman claimed to have suffered a similar range of complications due to the implant's alleged defects. And each plaintiff "asserted the same design-defect and failure-to-warn claims under West Virginia law," Judge Wilkinson wrote.

At trial, the four women all relied on the testimony of the same expert witnesses, drawing on the same Boston Scientific documents for further information. Likewise, Boston Scientific's defense strategy was nearly identical across all four trials.

Bundled Trial Did Not Prejudice Jurors, Court Rules

As a result, the Appeals Court concluded, the consolidation was certainly appropriate on the grounds of efficiency. Nor did it prejudice jurors against the defendant, Judge Wilkinson says. The trial court took pains "to limit any potential jury confusion or prejudice resulting from the consolidation," the Appellate decision finds.

Jurors were instructed to treat each plaintiffs' case as if it had been tried on its own. And, at trial, Boston Scientific had the opportunity to answer each woman's claims individually, even seeking a comparative negligence judgment in one case that was not pursued in the others.

After dismissing the company's concern that jurors were unfairly prejudiced, the Appeals Court turns to the question of whether the jury's awards were supported by sufficient evidence. They were, Judge Wilkinson pointedly writes: "[Boston Scientific] may not like the fact that all four plaintiffs received significant awards, but the harms suffered were serious in each case, and the evidentiary support for each damages award was substantial."

6,000 Boston Scientific Pelvic Mesh Cases Remain

Boston Scientific still faces around 6,000 remaining pelvic mesh lawsuits, all of which are consolidated in the District Court of the Southern District of West Virginia. The Multi-District Litigation, centering on the manufacturer's Obtryx products, once included over 25,000 separate cases. In January of this year, the District Court approved a settlement agreement resolving about 350 of the lawsuits, though, as usual, the terms of the resolution have not been released.

The Legal Herald

About Laurence Banville

Attorney Contributor:

Laurence P. Banville, Esq. is the managing partner of Banville Law. He is a regular contributor on several topics including negligent security cases, child sexual abuse and Dram Shop and liquor liability cases.

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