The Register-Herald, Beckley, West Virginia

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July 15, 2013

Mistrial declared in surgical mesh case

CHARLESTON — A witness’ testimony has led to a mistrial in the first trial of thousands of surgical mesh lawsuits filed nationwide.

U.S. District Judge Joseph Goodwin declared the mistrial last week after determining that jurors would not be able to disregard improper testimony by a plaintiff’s witness, the Charleston Gazette reported Monday.

Dr. Lennox Hoyte had testified that no one implants or sells the mesh anymore. His statement came in response to questioning by plaintiff’s attorney Paul Farrell of Huntington.

“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?’” Goodwin said, according to court transcripts.

Goodwin said the statement was “spontaneous” and was not true.

“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.

He scheduled a new trial to begin July 29.

The first case to go to trial is a lawsuit filed by Donna Cisson of Georgia against C.R. Bard Inc. It is one of four cases Goodwin will hear in Charleston to determine the next step in litigation for the remaining lawsuits.

The lawsuits accused the implants’ makers of inadequate testing, failing to disclose potential risks and fraudulently promoting the mesh as a safe medical device.

The Judicial Panel on Multidistrict Litigation assigned the federal lawsuits to Goodwin. Lawsuits also have been filed in state courts. Bard contends the mesh was safe for its intended use and had been approved by the FDA.

The FDA cleared the mesh — often a soft, lightweight porous plastic — for pelvic organ prolapse in 2002, and the agency said in a 2008 public notice that problems were “rare.” In July 2011,  however, the agency said it erred in its initial assessment and estimated the most common problems occur in 10 percent of women within a year of surgery.

In June, Goodwin granted summary judgment to C.R. Bard dismissing several claims made by Cisson’s lawsuit, including a manufacturer’s defect. He also said then that a jury may award punitive damages, if appropriate, in a separate trial.

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