Batiste v. Ethicon Enters Third Week - Defense Discredits L.B.

The Honorable Ken Molberg

**Editors Note ** This is a rewrite from yesterday to incorporate afternoon observations. Thanks to "Cathy" a mesh-injured special court watcher who is among those sitting in this Dallas courtroom watching the proceedings in Batiste v. Ethicon as the trial enters its final week. She cannot be identified because she is involved in mesh litigation. Cathy is not a lawyer but an observer and shares what she sees. Thank you Cathy!

Cathy reports the day was full of videotaped depositions. Cathy says the jury is awake and the courtroom is full of 12-18 "suits" with laptops. There appear to be four people in the audience who are not connected to the law firms present.

Blame the Victim

L.B. attorney Tom Cartmell not in court today. Four other attorneys sat on their side of the courtroom and L.B. joined them at the table. A young African-American woman, a paralegal it turns out, was with her taking care of her throughout the day and was very attentive to the plaintiff.

TVT-O from TVT Meshed Up Mesh, UK

Judge Ken Molberg entered the courtroom around 9:20 and the jury of seven men and seven women entered the courtroom. Six are African-American as is the plaintiff.

L. Batiste (L.B.) v. Ethicon is a product liability case naming Ethicon, a unit of Johnson & Johnson. She is a 64-year-old woman who has spent the majority of her years in Dallas. On January 12, 2011 she was implanted with an Ethicon TVT-O as a treatment for stress urinary incontinence (SUI). The TVT-O was launched by Ethicon in 2004 as an update to the TVT. The “O” stands for obturator approach, a new way to attach the mesh inside the pelvis as opposed to the retropubic approach.

During the morning, the defense continued their case. As is common in any proceeding, the defense must chip away at the credibility of the plaintiff. It is helpful if they can blame her for her medical conditions, specifically the injuries and pelvic pain from mesh.

Old Boyfriend

First lawyers for Ethicon showed a videotaped deposition of Alan Blackorn, a white man who moved in with L.B. in 2007. He was unemployed and says they were friends who had discussed getting married. He verified that L.B. smoked but was trying to cut down, verified that L.B. had high blood pressure, was diabetic, had back surgery, was disabled. He went on to describe her disabilities such as her trouble walking.

Blackorn left L.B. in August 2013 when she had problems “downstairs” and he lost interest with her sexually. L.B.’s situation worsened and became “overwhelming.” He told jurors she was in the hospital when he left her.

Not too impressive to anyone, writes Cathy, but obviously he was there to point out L.B. did not enjoy robust health before her TVT-O implant.

Blame the Victim

Christopher Adkins MD was L.B.'s primary care physician. This was a very lengthy deposition because each and every office visit was brought up and reviewed showing all Linda’s many medical problems: osteo arthritis, Chronic Pain Syndrome, diabetes, obesity, high blood pressure, diabetic neuropathy, peripheral vascular disease, gout, COPD, arthritis and shingles. They constantly reminded the court that L.B. was a smoker and smokers are poor “healers." The physician stated that she continued to smoke even with COPD, she had gall bladder surgery and was not taking her medications.

Lawyer's for the plaintiff questioned the doctor - Are you a gynecologist? Are you a urologist? Are you a urogynecologist, a therapist, a psychiatrist?

The next taped deposition was with a woman gynecologist, Dr. Brown, who took over the care of L.B. after her implanting physician left the profession due to early onset Alzheimer’s disease.

After reviewing her extensive resume, the questioning began. Dr. Brown says in her practice she “desires” not to do TVT-O’s. Most of her practice doesn’t have “true” stress urinary incontinence (SUI). States she has done many TVT-O’s in her residency and practice. She states that if a patient is the “right” candidate with pure SUI, she may refer them to urologist or urogynecologist.

Preferably a candidate would need to be a nonsmoker with low body fat or BMI (body mass index, a measure of fat). There is a higher erosion rate and longer healing time with a smoker and high BMI. When asked if Dr. McNabb, the implanting physician, placed the TVT-O properly, she replied “Yes.” (This is an interesting answer that actually plays in the favor of the plaintiffs since many manufacturers blame the doctor for a bad placement.)

With the exception of bladder spasms the patient was doing well until a post-operative visit at two months that showed the mesh had eroded into the vagina. Dr. Brown simply cut the mesh with a scissor. She called it a small erosion and gave the patient estrogen cream.

When the doctor was asked it J&J ever informed/warned of some of these complications, the doctor replied “No, I learned it by evidence-based medicine (experience). Asked if she allowed a pharmaceutical company to teach her the TVT-O procedure she replied no, she was taught in residency.

Dr. Gary Lemack, witness for the defense

SUFU

Then the defense showed the taped deposition of Dr. Gary Lemack who is urogynocologist who does reconstructive female pelvic medicine. He is a professor in the Department of Urology at UT Southwestern. Dr. Lemack is on the board of the Society of Urodynamics, Female Pelvic medicine & Urogenital Reconstruction (SUFU) as its Secretary/Treasurer and is an editorial Consultant for the American Board of Urology and American Urological Association. He has co-authored over 100 peer-reviewed publications and 18 book chapters according to his CV here.

Here is his website.

Johnson & Johnson's attorneys showed the edited version of his deposition to make their points. In it, Dr. Lemack called mesh the Gold Standard. (Cathy writes * On a personal note – I’m so sick of hearing that and so is my crotch!).

On the cross exam, attorneys for L.B. showed the portions of the tape that had been left out. On the cross tape, Dr. Lemack admitted the pain experienced by L.B. could be attributed to the TVT-O she had in her pelvis as well as her pain with sex. He added that the medical device was probably not "sized" properly which implies doctor error not a defective medical device.

The physician did her partial mesh explants and stated there’s not much else that can be done for L.B. other than pelvic floor physical therapy. Two jurors appeared to be sleeping at this time.

Dr. Charlotte Owens, signed off on Prolift

After Dr. Lemack’s tape, J&J wanted to bring in a surprise deposition- that of Dr. Charlotte Owens, the former Worldwide Medical Affairs Director for Ethicon. Readers of MND may recall her taped deposition was shown at the New Jersey trial last winter of Linda Gross. (See Day 11 Gross v. Ethicon here.)

This move was a complete surprise to the plaintiffs’ team. Owens had never been on the list of possible witnesses and besides, she appeared in a different case. Judge Ken Molberg agreed with the plaintiffs' attorneys and decided to disallow the Owens deposition.

At 2:00 pm he sent the jury home and asks that they return at 9:15 am Tuesday. Tuesday he said be prepared for a two-hour lunch break because there was something he had to do. Then the “suits” and judge start talking about what will be on the agenda for tomorrow, he tells suits that the jury is tired and to wrap this case up. Then they start nitpicking every question on the juror questionnaire. Of course it’s like Congress, each side will not agree to what the other side wants.

A young looking reporter from the Dallas Observer (corrected from earlier version) was in the courtroom Monday and will be back Tuesday. I gave her the Mesh News Desk address.

Expect closing argument to commence this week. #

Editor's Note * Thank you Cathy!! Stand by for more from the MND court watchers. Cathy will not be there Wednesday and if anyone can attend the Dallas trial it would be helpful when the jury comes back if the case goes that long. Thank you!