A Dallas, Texas, jury has returned a $73 million verdict in a lawsuit against Boston Scientific Corporation (BSC) filed by Plaintiff Martha Salazar. Ms. Salazar was implanted with the company’s Obtryx sling device for stress urinary incontinence. This verdict marks the first trial loss for Boston Scientific’s pelvic mesh products and I don’t believe it will be the last one.
One of the most persuasive factors leading to the $23 million compensatory and $50 million punitive damages award was an internal communication between BSC executives that discussed a study published in the December 2009 edition of the American Journal of Obstretics and Gynecology. The study, conducted by researchers in Canada, concluded that more long-term research was needed on the Obtryx sling to gauge potential health impacts. But, BSC executives sought to shield the study from physicians. The email from BSC executive Alex Robbins said:
I don’t feel this paper would be useful to the sales force in terms of helping defend business or selling more slings. It actually is a fairly negative outcome in terms of our Obtryx sling. I certainly wouldn’t hand this out to any physicians.
Internal documents, such as the email admitted into evidence in this case, are often the very best way for a Plaintiff to prove what a company knew or should have known regarding potential problems with its products. We have found emails to be a treasure trove of information in a number of product liability cases.
Lawyers for Boston Scientific attempted to tell jurors that the Obtryx was approved by the U.S. Food and Drug Administration (FDA). But Judge Ken Molberg held a different view, stating: “The FDA did no such thing.” He referenced the FDA’s process for fast tracking new devices to the market under the 510(k) clearance process.
This verdict comes on the heels of two previous bellwether trials against BSC where jurors found that its Obtryx sling and its Pinnacle Pelvic Floor Repair Kit were not defectively designed. Lawyers for Ms. Salazar believe that the verdict in her case will be upheld on appeal, subject to the punitive damages cap in Texas that will likely reduce that portion of the award to approximately $35 million. The next pelvic mesh trial involving BSC is scheduled to begin in Florida federal court in November. For more information on this subject contact Chad Cook or Leigh O’Dell, lawyers in our Mass Torts Section, at 800-898-2034 or by email at Chad.Cook@beasleyallen.com or Leigh.Odell@beasleyallen.com.
Sources: Law 360 and the Dallas Observer
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