The first federal transvaginal mesh trial awarded $2 million to Donna Cisson last week. Now comes the second of the four bellwether cases. The case, Wanda L. and Greg T. Queen v. C.R. Bard starts today.
So what’s a bellwether case? By definition, it is a legal term for an “indicator of future trends.” Courts will adopt a bellwether approach when there is a large number of plaintiffs with the same type of claims and there is no other way for courts to handle the tremendous caseload. Hence, the plethora of transvaginal mesh cases that will soon be underway.
In this particular case, Wanda was implanted with the Bard Avaulta Solo Anterior Synthetic Support System during surgery used to treat pelvic organ prolapse. The surgery was performed by Dr. Elizabeth Barbee at Wake Medical Center in Raleigh, NC. Due to the transvaginal medical device implanted in her, Wanda alleges she has experienced horrendous mental and physical pain and suffering – and even physical deformity. Additionally, she “has undergone or will undergo corrective surgery or surgeries and has endured impaired physical relations with her husband, Plaintiff Greg Queen.”
The following counts are the basis for the case:
Count I – Negligence
The manufacturer had a responsibility to “use reasonable care” in designing the product label and packaging, and in selling the product. Due to the negligence of the defendant, Wanda has experienced and will continue to suffer severe personal injuries, emotional distress, financial or economic loss including but not limited to medical services and expenses, present and future lost wages and other damages.
Count II – Design Defect Strict Liability
The product was not reasonably safe for its intended use and was defective. As a result, Wanda suffered severe injuries.
Count III – Manufacturing Defect Strict Liability
The product was defective with respect to its manufacture which was the direct and proximate cause of Wanda Queen’s injuries and future injuries and emotion distress, pain and suffering, financial loss and economic loss due to medical expenses.
Count IV – Failure to Warn
The product was defective in its lack of appropriate and necessary warnings.
Count V – Breach of Express Warranty
C.R. Bard assured the public hospitals and healthcare professionals that the product was safe and reasonably fit for its intended purpose. Due to this assurance, both she and her healthcare provider chose the medical device. C.R. Bard breached these express warranties because the product was unreasonably dangerous and defective and the defendant misrepresented its safety.
Count VI – Breach of Implied Warranty
It was impliedly warranted that the product was “merchantable and fit for the ordinary purpose for which it was intended.”
Count VII – Loss of Consortium
Greg Queen suffered loss of “his wife’s consortium companionship society affection services and support.”
Count VIII – Punitive Damages
The Defendant knew the risks or should have known the product was defective and presented an unreasonable risk of harm to Wanda Queen. The defendants conduct “manifested a conscious indifference to, and /or flagrant disregard of, the safety of those persons who might foreseeably have been harmed by the product, including plaintiff Wanda Queen, justifying the imposition of punitive damages.” They ask for the costs of attorneys’ fees, interest or any other relief that is reasonable.
Jury selection began this morning. (In the Donna Cisson case last week, it took one morning to select six jurors and two alternates.) It is expected that Wanda’s case will begin this afternoon.
This second case is one of four against C.R. Bard that claims the manufacturer knew of the dangers of its defective Avaulta transvaginal mesh used in pelvic organ prolapse surgery, and failed to warn the physicians who performed these surgeries. There are a whopping 28,000 consolidated cases in this court naming six total manufacturers of transvaginal mesh products.
Dr. Anthony Visco is Chief of Urogynecology at Duke University Medical Center and President of the American Urogynecologic Society (AUGS). The organization was found in 1979 and is comprised of 1,400 physicians and allied health professionals caring for women with pelvic floor disorderss, specifically pelvic organ prolapse (POP) and stress urinary incontinence (SUI). Dr. Visco is expected to be called as a witness in the case.
Also, expected to be called as witnesses are implanting physician, Dr. Elizabeth Barbee, Dr. Denniz Zelnoun, assistant professor at the University of North Carolina, Chapel Hill in the Department of Obstetrics & Gynecology and former FDA Commissioner, David Kessler.
Reyes | Browne | Reilley is currently helping hundreds of transvaginal mesh and bladder sling victims and their families recover damages from their devastating TVM complications. If you or someone you know suffered injuries from this product, please call us for a complementary and confidential consultation. You are under no obligation to use our services. Call us today at 214-526-7900, or submit the short case review form on the right.