Federal Court Upholds $2.4 Million Award in ObTape Lawsuit

In recent years there have been hundreds of personal injury lawsuits filed against Mentor, the manufacturer of ObTape, a mesh sling used to treat urinary incontinence. According to a 2009 report in the New York Times, Mentor stopped selling ObTape in 2006 after reports emerged that pieces of the mesh sling were breaking off inside of patients. This rendered the devices ineffective in stopping incontinence and led to a variety of additional side effects, such as chronic bladder inflammation.

Taylor v. Mentor Worldwide LLC

Eventually, more than 800 lawsuits against Mentor, which is now owned by Johnson & Johnson, were consolidated as part of a multi-district litigation (MDL) proceeding here in Georgia. One of the first cases from this MDL to go to trial involved a woman named Teresa Taylor. She specifically accused Mentor of design defects in ObTape.

After a nine-day trial, a jury agreed with Taylor that the ObTape implanted in her “had a design defect that was the legal cause of her injuries.” More precisely, the jury found that Mentor failed to provide Taylor’s doctor “with an adequate warning” about these design defects before or after he implanted the device in her.

The jury awarded Taylor $400,000 in compensatory damages. It also awarded $4 million in punitive damages after finding that Mentor “had a specific intent to harm” Taylor and that the company “was motivated solely by unreasonable financial gain.”

Not surprisingly, Mentor challenged the jury’s verdict. The trial court denied the company’s motion for a new trial. But the judge did agree to cut the amount of punitive damages in half, from $4 million to $2 million. This prompted both sides to appeal to the U.S. 11th Circuit Court of Appeals in Atlanta.

But the 11th Circuit affirmed the trial court’s handling of the case. With respect to Mentor’s request for a new trial, the appeals court said the company’s argument largely focused on the trial judge’s decision to allow one of Taylor’s expert witnesses to testify. Mentor insisted the expert never explained “how much” of the allegedly toxic substance–the broken mesh–was necessary to “create a risk of harm to Taylor.” The appeals court said such testimony was unnecessary, because what the expert actually said was that “all ObTape degrades and that any polypropylene particles it sheds spark a response by the body’s immune system, which leads to inflammation and erosion. In other words, there was no “safe” level of toxicity.

As for the issue of punitive damages, the 11th Circuit noted this case was governed by Florida law. Florida does permit a jury to award punitive damages in cases of “intentional misconduct or gross negligence.” The evidence presented to the jury could support such findings. That being said, there was insufficient evidence that Mentor had the “specific intent to harm Taylor,” as opposed to evidence the company knew that ObTape had a “high incidence of injury.” For this reason, the appeals court said it was appropriate for the trial judge to reduce the actual amount of punitive damages awarded by the jury.

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