In November 2014, two different juries handed down back-to-back awards
for plaintiffs in transvaginal mesh lawsuits against the Massachusetts-based
Boston Scientific Corp. While this is certainly encouraging news for plaintiffs,
the consecutive losses in the first two federal trials for the company
could potentially drive up the cost for settling the thousands of similar
lawsuits pending. Currently, there are over 24,000 mesh claims in U.S.
state and federal courts pending against Boston Scientific.
A Miami jury awarded $26.7 million to four women fitted with Boston Scientific's
Pinnacle device designed to alleviate pelvic organ prolapse. Only one
week later, a jury in West Virginia awarded $18.5 million in damages to
four women implanted with the company's Obtryx stress urinary continence
device. The award included $4 million for "gross negligence."
Of the damages awarded by these juries, large percentages were compensatory
damages. The purpose of compensatory damages is to reimburse a plaintiff
for financial losses related to their injury- for example, lost income
and medical expenses. Typically, compensatory damages are a dependable
indicator of the value of similar claims, and will withstand the appeals
process better than punitive damages, those designed to punish a defendant,
which are subjective in nature. This could be especially unpleasant for
Boston Scientific's bottom line.
Each plaintiff in the Miami verdict received between $6.5million and $6.7
million, whereas each women in the West Virginia trial received between
$3.25 million and $4.25 million in compensatory damages. And while the
amount of compensation varies with each case, it is noteworthy that different
juries awarded millions to each plaintiff.
The outcomes of bellwether trials do not ensure each women will win her
case. However, they do indicate to plaintiffs and defendants how juries
determine the worth of the cases, and this information is crucial in establishing
a settlement value for the other claims. Furthermore, large verdicts give
companies incentive to settle out of court. U.S. District Judge Joseph
Goodwin in the Southern District of West Virginia, who is supervising
the federal mesh cases, is attempting to expedite the settlement process
by trying cases with several plaintiffs and mandating that hundreds more
suits are ready for trial as early as next year.
Boston Scientific is only one of seven companies facing approximately 67,000
federal mesh cases. Other defendants include C.R. Bard and Johnson &
Johnson's Ethicon Inc., all of whom have experienced a combination
of wins and losses.
Boston Scientific, who reportedly has $945 million in litigation reserves,
plans to appeal the verdicts and declined further comment.