Boston Scientific to Appeal Mesh Ruling Despite $90M Cut

The Product Safety & Liability Reporter™ provides updates on significant developments and issues in product safety and liability litigation and regulation, plus analysis from top litigators. Get...

By Julie Steinberg

Oct. 14 — Boston Scientific Corp. isn't satisfied with a 90 percent, $90 million reduction in damages and will appeal a jury's finding of liability in a pelvic mesh suit.

Evidence supports the jury's conclusions that Boston Scientific's Pinnacle and Advantage Fit devices were flawed, had insufficient warnings and caused Deborah Barba's injuries, Judge Mary M. Johnston of the Delaware Superior Court said Oct. 9.

However, Johnston said the jury's $25 million compensatory award was excessive, and lowered the amount to $2.5 million. The judge said the jury properly awarded punitive damages and said a 3:1 ratio was appropriate. Accordingly, the $75 million exemplary award was reduced to $7.5 million.

“We appreciate that the trial court reduced the verdict by 90 percent, however, we believe there were factual and legal errors underlying the verdict and we plan to appeal,” Boston Scientific spokeswoman Kelly Leadem told Bloomberg BNA Oct. 14 in an e-mail.

Phillip Edwards, an attorney for Barba, declined to comment on the decision.

Awards Compared

Barba alleged she suffered a host of medical problems caused by the devices, used to support pelvic organs and treat urinary incontinence.

The jury returned a verdict in May. Boston Scientific sought judgment as a matter of law, a new trial and a reduction of the damages awarded.

The court found the verdict out of proportion to the plaintiff's injuries.

Looking at mesh cases, the court said a Texas jury returned a $23 million compensatory verdict. Other pelvic mesh cases have resulted in compensatory damage verdicts ranging from $250,000 to $6.7 million, the court said.

In cases where juries awarded punitive damages, those amounts ranged from $1.75 million to $7.76 million, the opinion said.

The Texas jury awarded $50 million in punitives but a statutory cap reduced the amount to $11.1 million, the opinion said. The Texas case was Salazar v. Lopez, Tex. Dist. Ct., DC-1214349, 10/3/14.

Learned Intermediary

The court upheld the jury's determination on Barba's fraud claims, rejecting the company's argument that the plaintiff couldn't succeed on this claim because it didn't communicate directly with her.

Learned intermediary principles don't defeat a fraud claim, Johnston held, saying whether the learned intermediary doctrine applies to a fraud claim was a question of first impression for the court.

A reasonable jury could find that Boston Scientific knowingly made fraudulent representations and/or omissions to Barba's physician, upon which the company knew he would rely, and which were communicated to and relied on by Barba, the court said.

The evidence here supports the jury's finding that the warnings provided to Barba's doctor were inadequate and that additional information would have changed his decision to use the Pinnacle and Advantage Fit for Barba, the opinion said.

Additionally, the court said evidence was sufficient for a reasonable jury to find that defects identified in Boston Scientific mesh samples were also present in Barba's mesh and caused her injuries.

FDA Evidence

The court also rejected Boston Scientific's argument that it erred in admitting evidence meant to show the company intentionally misled the Food and Drug Administration.

The plaintiff's claims weren't disguised fraud-on-the-FDA claims, the court said, acknowledging that such a claim would be preempted under Buckman v. Plaintiffs' Legal Committee, 531 U.S. 341 (U.S. 2001).

The court also said Boston Scientific opened the door to the challenged proof by seeking admission of evidence that it had obtained FDA approval to sell the devices.


Boston Scientific agreed in April to pay $119 million to resolve about 3,000 suits over the devices.

Tens of thousands of federal pelvic mesh cases have been consolidated in multidistrict proceedings before Judge Joseph Goodwin of the U.S. District Court for the Southern District of West Virginia.

Other suits have been filed in state courts in Delaware, New Jersey, Missouri, Texas and California.

More than 18,000 actions are pending against Boston Scientific in MDL No. 2326, according to a Sept. 15 statistics report.

Edwards is with Murphy & Landon. Motley Rice LLC also represented the plaintiff.

Shook, Hardy & Bacon LLP and Eckert, Seamans, Cherin & Mellott represented Boston Scientific.

To contact the reporter on this story: Julie A. Steinberg in Washington at

To contact the editor responsible for this story: Jeffrey D. Koelemay at

The opinion is available at