Texas Jury Hands J&J Victory At First ‘Prosima’ Pelvic Mesh Trial

Posted by David Siegel on Oct 5, 2015 5:52:00 PM


Defense attorney William Gage tells jurors during his closing argument that Ethicon's Prosima pelvic mesh system was not defectively designed and didn't injure Carol Cavness. Click here to see video from the trial.

Dallas — Johnson & Johnson scored a major win Monday in a $9.5 million products liability suit over its Prosima pelvic mesh system, when a Texas state court jury rejected a woman’s claim that the device was defectively designed in the first case over the implant to go to trial.

The jury reached a 10-2 verdict after beginning deliberations on Friday following a two-week trial during which attorneys for plaintiff Carol Cavness argued that J&J’s Ethicon unit knew the Prosima mesh was too stiff and could cause vaginal tissue to degrade, but failed to adequately warn patients and doctors of the risks. Cavness, 60, had the Prosima mesh implanted in 2012 to treat a condition called pelvic organ prolapse, and claimed since then she’s suffered pain, infections and undergone multiple surgeries in an effort to remove the mesh.

Her attorneys sought $9.5 million for past and future medical expenses and pain and suffering, and an unspecified amount of punitive damages. Video of the trial was recorded from the start of witness testimony onward by Courtroom View Network, and is available for viewing here, along with three prior pelvic mesh trials.

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Monday’s verdict marks the first time a case involving the Prosima mesh made it all the way to a jury out of tens of thousands of mesh cases pending throughout the country, and the first time Ethicon has been cleared by a state court jury at a trial involving its pelvic mesh products. The company notched a win in federal court in 2014 at a trial involving a different mesh product, but juries in New Jersey, California and Texas delivered verdicts against Ethicon at three earlier state court trials. A fourth in Missouri settled mid-trial. 

Ethicon’s attorneys argued throughout the trial that Cavness had a lengthy and complex medical history, and that her pain could have been caused by injuries sustained while working as an aircraft mechanic. Cavness’ attorneys blasted this as an attempt to paint her as “damaged goods,” but William Gage of Butler Snow LLP maintained during his closing argument that Cavness’ medical and work history was relevant.

“The reason we went into her past medical history was to demonstrate that in her job, which is a very difficult job, she has repeatedly injured herself,” Gage said, according to a Courtroom View Network webcast of the trial. He told jurors Cavness had abdominal pain before the Prosima was implanted, and that her pain persisted even after it was removed.

Ethicon spokesman Matthew Johnson said in a statement that the jury’s decision “reflects the facts in this case,” and that Ethicon acted appropriately and responsibly in the research, development and marketing of the Prosima mesh.

“We empathize with all women suffering from pelvic organ prolapse, which can be a serious and debilitating condition, and we are always concerned when a patient experiences adverse medical events,” Johnson said. Ethicon has maintained the Prosima offered better outcomes for pelvic organ prolapse patients than other surgical procedures.

Ethicon halted sales of the Prosima in 2012, roughly a week after Cavness received the implant, amidst mounting suits over the device and increasing scrutiny from the U.S. Food & Drug Administration. Cavness’ attorneys argued the company withdrew the Prosima to avoid a costly recall. Ethicon said at the time that the decision wasn’t based on safety concerns but was instead motivated by “changing market dynamics.”

While mesh manufacturers like Ethicon and Boston Scientific have taken numerous cases to trial, other companies have chosen to settle their pelvic mesh cases en masse rather than risk being saddled with massive jury verdicts. Endo International PLC subsidiary American Medical Systems Inc. struck an $830 million deal in 2014 to settle most of the 22,000 suits overs its mesh products.

Plaintiffs’ verdict against Ethicon have ranged between $1.2 million and $11.1 million, according to court records. Boston Scientific has notched more wins in state court, but been hit with substantially larger verdicts. A trial in 2014 before the same judge who presided over the Cavness trial resulted in a $73 million verdict, later reduced to $34 million, and in May a Delaware state court jury rocked the company with a $100 million verdict.

Cavness’ legal team will soon get another chance to convince a Texas jury that Ethicon’s mesh products are defective. An October 26 trial is scheduled in state court in Austin over the company’s TVT-O and Prosima mesh systems.

“We continue to think this was and is a dangerous product,” David Matthews of Matthews & Associates told CVN. “We will continue to go to verdict against this manufacturer until resolution is accomplished for our clients.“

Cavness is represented by Tim Goss and Rich Freese of Freese & Goss PLLC, Bill Blankenship of William F. Blankenship III PC,, Richard Capshaw of Capshaw & Associates, Kevin Edwards and Peter de la Cerda of Edwards & de la Cerda PLLC, and Julie Rhoades and David Matthews of Matthews & Associates.

Ethicon is represented by William Massie Gage and Helen Kathryn Downs of Butler Snow LLP and Kathleen Gallagher of Beck Redden LLP.

Cavness’ physician Teresa Kowalczyk is represented by Philipa Remington and Cathryn Paton of Thiebaud Remington Thornton Bailey LLP.

The case is Cavness v. Kowalczyk et al., case number DC-14-04220, in the 95th District Court of Dallas County, Texas.

E-mail David Siegel at dsiegel@cvn.com.

Topics: Products Liability, healthcare

Million-Dollar Award, Plus Possible Punitives, in Tobacco Trial Over Fatal Lung Cancer

Posted by Arlin Crisco on Oct 3, 2015 1:52:00 AM


Lance Oliver delivers closing arguments in Gertrude Marchese's suit against R.J. Reynolds and Philip Morris for the lung cancer death of her husband, Salvatore, a smoker for more than 50 years. 

Fort Lauderdale, FL—Jurors Friday awarded $1 million, plus potential punitives, to a Florida widow who claimed two of the nation’s leading tobacco companies were responsible for her husband’s death following a half-century of smoking. Marchese v. Philip Morris, 2013-CV-002849.

Gertrude Marchese sued Philip Morris and R.J. Reynolds, claiming the companies’ concealment of smoking’s health risks caused her husband Salvatore’s nicotine addiction and the respiratory disease and cancer that followed. Salvatore Marchese, who began smoking at about 13, died from lung cancer in 2004 after more than 50 years of smoking Reynolds and Philip Morris-brand cigarettes.

New Call-to-action The verdict, reached after a full day of deliberations, found Salvatore Marchese’s smoking addiction was furthered by a decades-long tobacco industry conspiracy to hide the dangers of cigarettes. Jurors apportioned 55% of liability to Marchese with the remaining 45% split evenly between the two defendants. However, the decisions in favor of plaintiff on the suit's fraud and conspiracy elements mean the $1 million compensatory award will not be reduced.

During Thursday's closings, Marchese's attorneys had requested up to $11 million in compensatories.

The Marchese suit is among thousands of similar Florida cases against the nation’s tobacco companies. The cases stem from a 2006 Florida Supreme Court decision decertifying the class action suit Engle v. Liggett Group Inc. The state’s supreme court decision requires each Engle plaintiff establish class membership individually, by proving nicotine addiction that caused a smoking-related disease. Once plaintiffs prove class membership, they can rely on certain jury findings in the original verdict, including the determination that tobacco companies sold a dangerous, addictive product and conspired to hide the risks of smoking.

The driving force behind Marchese’s smoking decisions served as a central issue in the nine-day trial, with evidence focusing on a tobacco industry-wide agreement to market a product tobacco companies knew was dangerous and addictive. Jurors heard evidence that tobacco companies backed endorsements from physicians to cartoon characters, while they also secretly funded studies designed to counter the growing evidence that smoking was dangerous. 

During Thursday's closing arguments Shook Hardy’s Walter Cofer, representing Philip Morris, noted Marchese began smoking years before the 1954 tobacco industry agreement to hide smoking’s health risks, and he contended nothing tied defendants’ allegedly deceptive conduct to Marchese’s smoking choices. “There was not a single shred of evidence that Mr. Marchese ever heard or relied on anything the companies said or didn’t say,” Cofer argued. “He wasn’t confused. He wasn’t waiting for the tobacco companies to tell him something he didn’t already know.”

However, Motley Rice’s Lance Oliver, representing Gertrude Marchese, argued tobacco industry messaging was so pervasive it influenced Salvatore Marchese through those around him. “There is no requirement that Philip Morris and Reynolds ever made a direct statement directly to Mr. Marchese,” Oliver said. ”Sal Marchese’s whole family was smoking, and all of his friends were smoking; 75% of people in Sal’s generation were smoking.

“If Sal Marchese didn’t get that message directly from Reynolds and Philip Morris, I guarantee you the evidence shows that he got it from his family, and his friends, and his peers, and that environment that (the defendants) created.”

Phase 2 of the trial, on punitive liability, is scheduled to begin 9 a.m. Monday.

Neither the parties’ attorneys nor tobacco company representatives could be reached for comment.

Email Arlin Crisco at acrisco@cvn.com

Related Information

Gertrude Marchese is represented by Motley Rice’s Lance Oliver and Michael Pendell. R.J. Reynolds is represented by Jones Days' Jose Isasi and Michael Quinlan. Philip Morris is represented by Shook Hardy’s Walter Cofer.

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Topics: Negligence, Products Liability, tobacco, Florida, Marchese v. Philip Morris

Watch the Defense Argument that Defeated a $10M Med Mal Case | Florida Trial Video Vault

Posted by Courtroom View Network on Oct 2, 2015 1:48:00 PM


Mary Jaye Hall argues that Martin Memorial Medical Center physicians could not prevent fatal complications following Esther Freudberg's stroke. Freudberg died following the stroke in 2011, and her husband, John Freudberg, sued Martin Memorial Medical Center for $10 million. Jurors ultimately found in favor of the hospital and its physicians. Watch the entire closing argument here.  

A closing argument in a medical malpractice case is a rhetorical highwire act, requiring a good attorney to ensure jurors understand key medical concepts while arguing how those concepts apply to the the specific case at hand. Spend too much time reiterating general medical concepts and risk losing the jurors' attention. Spend too little time on those topics and risk confusing the jury as you argue the evidence. In a $10 million trial over the stroke-related death of an emergency room patient, Mary Jaye Hall's closing efficiently combined complex medical information with powerful argument to strike at the theory of plaintiff's case. 

Esther Freudberg died at Martin Memorial Medical Center in 2011 from stroke-related complications. Her husband, John Freudberg, sued the hospital, as well as doctors John Gozar and Michael Ferraro, claiming their failure to take appropriate action caused his wife's death. 

The trial turned on whether the physicians had acted appropriately in their treatment of Freudberg, with experts on both sides weighing in on whether the fatal complications stemming from the stroke were preventable. 

McEwan, Martinez, Dukes & Hall's Mary Jaye Hall, representing Gozar, first walked jurors through what she argued was the timeline of Freudberg's stroke, quickly highlighting potentially confusing information on the effects and complications surrounding a stroke.

Using this information as a base, she attacked plaintiff's case, including what she claimed was a key theory: that lowering Freuberg's blood pressure could have prevented a hemmorhagic transformation, the fatal complication following Freudberg's stroke.  

Describing the theory connecting blood pressure to hemmorhagic transformation as debunked, "old science," Hall said "From Harvard, to Yale, to the University of Miami, to Georgia, to UVA, in this courtroom they have told you hemorrhagic transformation is not a blood pressure mediated problem. It doesn't matter if the number is high, or low. It's reprofusion that you can't predict and you can't prevent," Hall said.

"And when it happens, the die is cast."

Hall also used the background information she'd highlighted earlier to attack plaintiff's causation expert, Dr. Tomassina Papa-Ruggino, who described the importance of proper response to a stroke using the term "Time is brain."  

"It's a cute phrase, a catch-phrase," Hall said. "It's one they hope that you will write down and forget what it really means. But that has to do with tPA (tissue plasminogen activator), the clot buster drug, that (Freudberg) was never a candidate for. Their experts say she's not a candidate for tPA. It's not an issue in this case. But they like the phrase 'Time is brain. Brain is Time,' because it sounds good.

"But it's not science. It's not the science in this case."

Throughout her closing, Hall never talks down to the jury or oversimplifies concepts for them. Relying on the background information she highlighted earlier in closings, and jurors' memory of trial testimony, Hall uses terms like "tPA," "hemmorhagic transformation," "reprofusion," with no further reminders of their meaning, confident that the jury remembers the terminiology and has not become confused. It's a tactic that allows her to spend less time rehashing general medical information and it ultimately led to a defense verdict. 

Related Information

Watch gavel-to-gavel coverage of Freudberg v. Martin Memorial Medical Center on demand.

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Topics: Negligence, Medical Malpractice

Machinist’s Family Owed $15M For Fatal Asbestos Exposure, Jury Told

Posted by David Siegel on Sep 30, 2015 1:19:00 AM


Plaintiffs' attorney Chris Panatier shows jurors the types of asbestos used in gaskets he blamed for Dennis Seay's fatal cancer during his opening statement on Tuesday. Click here to see video from the trial. 

Spartanburg — John Crane Inc. and materials company Celanese Corp. should pay up to $15 million to the family of a machinist who died of mesothelioma after being exposed to asbestos while working at a polyester fiber plant in the 1970’s, jurors heard in a trial that began Tuesday in South Carolina state court.

Dennis Seay worked with asbestos insulation and asbestos-containing gaskets in a Celanese plant from roughly 1971 to 1980 while an employee of Daniel Construction Co, which Celanese hired for maintenance and repair work. Seay’s suit, filed in 2013, claims Celanese and gasket seller John Crane knew that asbestos exposure posed a cancer risk for workers but failed to adequately warn him of the dangers.

Seay’s attorney Chris Panatier of Simon Greenstone Panatier Bartlett PC told jurors during his opening statement that Seay began work at the Celanese plant shortly after passage of the Occupational Safety and Health Act, or OSHA, which directly addressed the dangers of asbestos and set strict exposure limits. He said hundreds of articles addressing the cancer risks associated with asbestos had been published by the time Seay arrived at the Celanese plant.

“These two companies had actual knowledge that asbestos caused disease and that it was killing people,” Panatier said, according to a Courtroom View Network webcast of the trial.  (Click here to see other asbestos trials in CVN's video archive.) 

Panatier told the jury that Seay, who died in 2014 at the age of 70, inhaled asbestos fibers produced from scraping down gaskets prior to replacing them and from the asbestos insulation surrounding the plant’s steam pipes. Seay was diagnosed with mesothelioma, a cancer affecting the lining of the lungs that is specifically linked to asbestos inhalation, in 2013.

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In a dramatic moment that could leave a lasting visual impression with jurors, Panatier showed a photograph of a healthy-looking Seay shortly after beginning his cancer treatment, and then another taken just two days before his death while he lay in a hospital bed looking extremely frail. He said the painful medical procedures Seay had to repeatedly endure during the last year of his life due to collapsed lungs, and the fact he could have otherwise lived for another decade or more, warranted a damages award between $10 million and $15 million.

“When it comes to cancers this is one of the most aggressive and the most awful,” Panatier said.  

Representing John Crane, Mark Tivin of O'Connell Tivin Miller & Burns asked jurors to keep their “eye on the ball” and not be swayed by sympathy for the Seay family’s loss. He didn’t dispute that Seay inhaled asbestos fibers and died of mesothelioma, but he said the exposure came from asbestos insulation and not from John Crane’s gaskets.

“I’m not here saying asbestos is the magic mineral, or hooray for asbestos. I’m not here to defend asbestos,” Tivin said. “I represent John Crane, and we do not agree that John Crane products were a substantial factor or cause of Mr. Seay’s mesothelioma.”

Asbestos used in insulation exposed to the open air is tens of thousands of times more deadly than asbestos contained inside sealed gaskets, Tivin told the jury. He said asbestos insulation was so prevalent at the Celanese plant that it would sometimes fall through floor gratings and land directly on Seay’s head.

Exposure potential from asbestos in gaskets is comparable to the safe background amounts of asbestos present in many parts of the United States, Tivin argued, suggesting that Panatier’s claims weren’t backed up by the medical literature.

“Although there have been studies which have specifically linked thermal insulation to the development of mesothelioma, there has never been one that specifically links gaskets,” Tivin said.

Celanese’s attorney Lane Young of Hawkins Parnell Thackston & Young LLP placed the blame for Seay’s death squarely on Daniel Construction. He said Daniel agreed in their contract with Celanese to be responsible for the safety of their own workers at the plant, and that Daniel failed to provide Seay with a respirator as mandated by OSHA.

He described Daniel as a large and sophisticated company that Celanese thought knew how to safely perform maintenance and repair work on asbestos-containing products.

“They relied upon Daniel to properly and safely do the work,” Young said. “If Daniel had just given Mr. Seay a respirator, the evidence in this case will be we likely wouldn’t be here.“

The trial before Judge Garrison Hill will take approximately two weeks to complete and is being webcast gavel-to-gavel by Courtroom View Network.

The case is Dennis Seay v. 3M Company, et al., case number 2013CP4203915, in South Carolina’s Seventh Judicial Circuit Court.

E-mail David Siegel at dsiegel@cvn.com.

Related coverage:

Jury Nails Georgia-Pacific With $17M Asbestos Cancer Verdict

Caterpillar Avoids $19M Verdict In Asbestos Wrongful Death Trial

Topics: Toxic Torts, Asbestos, product liability

Plaintiff's Attorney Builds Model of Gas Line Causing Apartment Explosion: GA Trial Highlight

Posted by Steve Silver on Sep 28, 2015 3:28:00 PM


According to the old saying, a picture is worth a thousand words, but in a recent Fulton County State Court case, a model proved to be worth almost $73 million for a badly injured plaintiff. Stephen Wells v. Aslan Commons, LLC, and WSE, LLC (12EV014728)

The plaintiff in this case, Stephen Wells, was burned over 90 percent of his body when the apartment he was entering exploded as a result of a natural gas leak. The accident occurred at the Edgewater Apartments in Sandy Springs on Memorial Day, May 31, 2010. Wells was a tenant at the complex who was in the process of moving from one apartment (906) to another (1703) in the complex over the holiday weekend. Although Wells’s lease for 1703 was not scheduled to begin until June 1, the management company gave him the key early so he could move.

New Call-to-action Wells spent the night of May 30 in unit 1703 and then went back to 906 at approximately 9:00 a.m. to gather some of his belongings. According to gas company records, the gas to 1703 was turned on shortly after Wells left the unit. By the time he returned, apartment 1703 had filled with gas. Apparently a spark ignited the gas within seconds after Wells re-entered the unit.

The gas entered the apartment through an open line into the laundry room that was intended to be connected to a gas dryer. The line also had a shutoff valve outside the laundry room that was open on the day of the explosion. When the gas to the unit was turned on that morning, it flowed through the open shutoff valve and out the open line.

After the accident, Wells brought the present law suit against the complex’s owner and the management company. In his complaint, he alleged a number of State of Georgia and City of Sandy Springs Building and Safety Code violations. The primary violation was the failure to install a cap on the open line as required by code. As a separate violation, the shutoff valve was not in the same room as the end of the gas line, as required by code.

By the time the trial began, the defense had acknowledged the fact that the gas line was uncapped when the explosion occurred. However, based on statements Wells had made prior to trial, his attorney Pete Law recognized that the defense would probably contend that Wells himself had left the shutoff valve open and that the jury should take that into account in apportioning fault for the explosion. Wells had stated (and would later testify) that he tried to turn on apartment 1703’s hot water heater earlier in the weekend but could not ignite the pilot light. The defense would suggest that, despite his testimony to the contrary, Wells had mistakenly turned on the dryer shutoff valve to try to get the water heater pilot light to ignite and then left it on.

In his closing statement, defense attorney Y. Kenneth Williams would explain his position to the jury, “If you find that Mr. Wells activated the gas line, the law requires you to apportion some amount of fault… We submit that it’s clear from the evidence that Mr. Wells activated the gas… The facts show that Mr. Wells did contribute to this explosion, and he must be apportioned some amount of fault… [During voir dire], you all unequivocally understood that you don’t have uncapped gas lines … but everybody else also agreed that you just don’t open gas lines that you don’t know where they are, and you don’t walk away from those gas lines.”

Law had his own theory of how the shutoff valve was left open, namely that a maintenance man had done so when he came to unit 1703 that morning in response to a complaint Wells made that the HVAC unit wasn’t working. However, he also did not want the case to turn on the jury’s determination of who turned on the shutoff valve. Instead, his contention, repeated several times during both opening and closing statements, was that it didn’t matter who turned on the valve.

Law knew from the start of the trial that he needed to impress the jury with the severity of the building code violations, that they were not merely technical, but that the provisions in question were designed to prevent the exact type of accident that occurred. Rather than merely rely on witness testimony or photographs showing the layout of unit 1703, Law and his staff built a model showing replicas of the actual pipelines and the walls that blocked the view of someone at the shutoff valve from seeing exactly what line was being opened.

Law wasted no time during his opening argument, assembling and putting the model after display immediately after his preliminary greetings. First he noted the severity of leaving the gas line uncapped, “Can you think of anything more dangerous than having an uncapped gas line? Gas filling an apartment?”

Then he illustrated the layout of the apartment by showing the jury the floor plan. Notably, the hot water heater and furnace were in one closet with the shutoff valve and the laundry room, with its uncapped gas line, was behind a wall, completely hidden from view of someone turning the valve on or off. He then showed the jury the model, with its valve in place and demonstrated how a workman at the valve could not see the end of the dryer line.

Law then explained the significance of the second code violation. “The code says someone might inadvertently turn [the valve] on not knowing where it is, so it’s got to be in the same room. That code violation makes it even more dangerous that they had the code violation that it’s uncapped. You don’t know where it’s going; you can’t see it. There’s walls that go all the way up. And so some guy’s working on the HVAC … and turns it on… But it doesn’t matter… Someone inadvertently turned it on, but the law in its infinite wisdom says ‘people are going to inadvertently turn these things on so keep them in the same room so you know what you’re turning on. Because if it’s not in the same room, you might turn on an appliance you didn’t intend to or turn off an appliance you didn’t intend to.’”

The model remained on display for the jury to observe throughout the entire trial, and law and co-counsel Mike Moran referred to it on a number of occasions. The continuous three-dimensional display of the premises could well have impressed the jury. They place the fault entirely on the defendants in the case and awarded Wells nearly $73 million, including punitive damages and attorney fees.

CVN’s previous coverage of the trial can be found here, here, here, and here. Steve Silver can be reached at ssilver@cvn.com.

Topics: Georgia, Wells v. Aslan Commons

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