Thursday, November 12, 2015

Texas Pelvic Mesh Ruling Could Make Plaintiffs Think Twice - Law360

Texas Pelvic Mesh Ruling Could Make Plaintiffs Think Twice - Law360
by Jess Davis

Law360, Dallas (November 9, 2015, 9:12 PM ET) -- A Texas appellate court ruling overturning a $1.2 million judgment against Johnson & Johnson in a pelvic mesh case because the plaintiff failed to prove the device caused her injuries could turn the tide in a wave of similar suits, leading to fewer cases and less valuable settlements, lawyers say.

The Fifth Court of Appeals in Dallas on Thursday reversed a judgment against Johnson & Johnson’s Ethicon Inc. unit, holding plaintiff Linda Batiste didn’t offer legally sufficient evidence that identified any alleged defect in J&J’s TVT-O pelvic mesh as the cause of her injuries, as compared with the device itself being the producing cause of her injuries. Batiste, who won the first trial holding Ethicon responsible for the bladder sling product used to treat stress urinary incontinence, had argued under Texas law that she needed only to prove the product caused her injuries.

In rejecting that argument, the appellate court applied what the Fourth Circuit has calledclear Texas precedent that requires plaintiffs to show both the defective condition of a product and a causal connection between that defect and a plaintiff’s injuries. That standard can be difficult for juries to parse, but sets a high bar that means even when a manufacturer loses in front of a jury, they have a good chance at knocking out an unfavorable verdict on appeal, Munsch Hardt Kopf & Harr PC’s Cliff Harrison said.

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