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Mistrial declared in medical mesh lawsuit

CHARLESTON, W.Va. -- A federal judge in Charleston declared a mistrial in a vaginal mesh lawsuit after determining jurors wouldn't be able to overlook a doctor's improper testimony.

After three days of trial, U.S. District Judge Joseph Goodwin found that a statement made by plaintiff's witness Dr. Lennox Hoyte last week couldn't be fixed by simply telling jurors to disregard it.

"I don't think it's a bell that can be unrung -- and I want to say this in the context of, to my knowledge, never declaring a mistrial in a civil case in nearly 20 years on the bench -- I think it would have been very difficult for the jury to disregard it," Goodwin said, according to court transcripts.

The judge declared a mistrial Wednesday, and set a new trial to begin at 8:30 a.m. July 29.

The trial was the first of more than 20,000 cases pending nationwide to determine if C.R. Bard Inc. failed to warn of the dangers associated with the vaginal mesh devices the company sold. Those suing the company allege the devices weren't suitable for human implantation.

Goodwin has been assigned the vaginal mesh cases as part of federal multidistrict litigation.

Thousands of women contend the New Jersey-based company used materials in its vaginal mesh products knowing they shouldn't be permanently implanted in humans. The mesh material was designed to support deteriorated pelvic muscles and treat urinary incontinence.

The women claim the mesh degrades and shrinks, requiring replacement and causing other medical problems.

The trial that began July 8 is a lawsuit brought by Donna Cisson. The 54-year-old Georgia woman contends that a device inserted in 2009 caused her pelvic and rectal pain, bleeding and bladder spasms and required surgeries to remove it.

While on the stand, Hoyte blurted out an unresponsive answer to the question posed by plaintiff's attorney Paul Farrell, of Huntington, transcripts show.

"Here's what I know," the gynecologist said in court. "I take a lot of these meshes out. I know that nobody implants them anymore, and I know that no one sells them anymore."

Bard's attorneys asked for a mistrial based on the statement, which Goodwin later called "spontaneous" and "not true."

"Farrell had simply asked ... 'What body of evidence exists in your opinion that supports your ideas sitting here today that Avaulta Plus armed mesh is a bad idea?'" the judge said.

He said telling the jury to ignore Hoyte's statement would have focused more attention on it.

Cisson's case is the first of four back-to-back representative cases Goodwin will hear to evaluate how best to handle the remaining litigation.

Last month, the judge dismissed a variety of claims, including a manufacturer's defect, by granting summary judgment to the company. He did, however, allow the plaintiff to have a jury decide the claim that the company failed to warn of known dangers.

The judge also determined a jury may award punitive damages, if appropriate, in a separate trial.

U.S. Food and Drug Administration officials estimate that 300,000 women had pelvic organ prolapse surgery in 2010 and that mesh was used in a third of the procedures.

Bard contends that the mesh was safe for its intended use and had been approved by the FDA. Plaintiff's attorneys argue, however, that internal documents from Bard show the company knew about the problems with the product.

In 2008, the FDA advised it had received more than 1,000 complaints in three years relating to transvaginal mesh products. In 2011, about 2,864 reports were received about vaginal mesh complications, according to the FDA.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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