A California jury in 2012 found for plaintiff Christine Scott and her husband, who sued in 2009 after a surgical procedure intended to treat occasional urinary incontinence left her entirely incontinent, in chronic pain and unable to have sex.
The jury awarded Scott $5 million for her injuries and her husband $500,000 for the damage to their love life, splitting the award between Bard and the implanting physician 60% to 40%, respectively. It was the 1st pelvic mesh lawsuit lodged against Bard to go to trial.
In its appeal to the California Appeals Court’s 5th district, Bard contended that Scott’s 3 negligence theories were wrong as a matter of law, alternatively arguing that the verdict wasn’t supported by substantial evidence, according to court documents. The company also argued that it was denied a fair trial because the jury was allowed to see evidence of "post-surgery events, attorney misconduct and juror misconduct," according to the documents.
The Scotts also appealed, asking the court to overturn the verdict against the surgeon because it was based on incorrect jury instructions.
The appeals court denied both parties, ruling that the Scotts’s negligence theories "were properly submitted to the jury and the negligence finding is supported by substantial evidence," according to the documents. "Further, Bard was not denied a fair trial."
Judge William Palmer also found against the Scotts, ruling that they "acquiesced in the giving of incomplete jury instructions on the surgeon’s fault when it was in their best interest for the jury to be properly instructed on that issue. Thus, the Scotts are estopped from asserting this instructional error on appeal."
Bard lawyer Michael Brown told Law360 that Bard is considering its options in the case.
"While Bard always has been very sympathetic to the course of events Christine Scott has undergone, we believe the evidence at trial confirmed that neither Bard nor its Avaulta products caused Ms. Scott’s injuries," Brown said. "As you can see from the opinion itself, there were a number of issues that permeated the trial that did not relate to the care and treatment of Ms. Scott, but nevertheless resulted in errors committed during the trial that allowed the jury to find against Bard."