In a California state court trial against Intuitive Surgical Inc. over injuries a woman claims was caused by the company’s surgical robot, Mark Geragos’s closing rebuttal used the medical device giant's own marketing and defense witness testimony to argue it pushed a potentially dangerous surgical system.
Michelle Zarick claimed Intuitive’s da Vinci surgical robot was responsible for a bowel injury she suffered as a result of a 2009 hysterectomy.
During the 8-day trial in 2016, her attorneys requested $30 million in damages.
During closing rebuttal, Geragos, of Geragos & Geragos in Los Angeles, pointed out that long before Zarick’s surgery, hysterectomies represented a fraction of the procedures in which the da Vinci device was used. Then, “they decided they were going to create another market for their surgical system, and that other market was going to be on women,” Geragos said. “That’s great if it’s going to be everything it was touted to be.”
But Geragos argued the company’s claims in its marketing materials and elsewhere did not match up with the truth. Geragos reminded jurors of brochures the company published over the years promising women could get back to activity “faster” than with traditional methods, and that average recovery could take 4.5 weeks. That claim, Geragos said, was undercut by defense witness testimony that it generally took about 8 weeks to recover from the procedure.
“The doctor who [the defense] just took to breakfast and paid to come down here and stay at the hotel… [the defense] put so much information into her head, I mean she couldn’t figure it out: ‘Wait? Am I saying 8 weeks? Do I say 4.5?’ Geragos told jurors, mimicking a confused witness. “You could see the wheels turning, she didn’t know what was going on.
“And the reason is because the whole thing is totally illogical. Because the 2011 [brochure] is still using the scam of 4.5 weeks [of recovery].”
Geragos contended that claim was important. “This was a supposed cure for a problem that didn’t exist,” Geragos said. “This was a company that decided they were going to prey on women now, and they were going to create a need for this surgery.”
Geragos argued that, more than simply creating a need, anecdotal evidence showed the device actually caused more problems similar to those Zarick suffered. Geragos reminded jurors of testimony from a physician who said she had performed about 200 hysterectomies with a single complication similar to Zarick’s before using da Vinci, while in da Vinci-aided procedures she had experienced 3 such incidents.
Geragos quipped that the defense witness became confused as to whether those 3 incidents came within 20 or 200 da Vinci procedures. “Whatever the hell was going on with her, I don’t know, but the fact is there was never a problem [before].”
I know that I’m making fun,” Geragos added, “but it’s no joking matter. You’re taking women’s health and introducing a robot into the equation, and you’re having exactly, by the way, exactly what happened to [Zarick].”
Intuitive and Zarick settled before the jury reached a verdict.
Email Arlin Crisco at acrisco@cvn.com.
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