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Free & Goss Attorneys

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Freese & Goss is proud to announce that their attorneys have been appointed to leadership positions in the Bard IVC Filter MDL litigation.  Sheila Bossier, a partner at Freese & Goss, has been appointed by the MDL to the Plaintiff’s Steering Committee.  Her appointment to the Plaintiff’s Steering Committee is as impressive as it is unsurprising.  As a long-time veteran of product’s liability litigation, Ms. Bossier’s experience will help guide the direction of the Bard IVC filter litigation.  In addition to being nominated to the Plaintiff’s Steering Committee, Ms. Bossier has also been asked to chair a committee focused on specific aspects of discovery.  Freese & Goss is also pleased to announce that Attorney Sara Turman-Vedral and Tim Goss, a founding member of Freese & Goss, have also been appointed to PSC committees central to the litigation.

We are pleased to announce that Tim Goss has been appointed to the Plaintiffs’ Executive Committee (“PEC”) in the Cook IVC Filter MDL. As a member of the PEC, Mr. Goss is part of a select few attorneys tasked with directing the litigation on behalf of all plaintiffs. Mr. Goss has served similar leadership positions in past MDLs, most recently in the West Virginia Pelvic Mesh litigation.

In addition to Mr. Goss’s appointment to the PEC, Attorney John Harloe has also been selected to serve in a leadership position in the same litigation, and will be leading the MDL’s committee on clinical and medical research. Freese & Goss partner, Sheila Bossier and attorney Sara Vedral will also be handling the prosecution of the Plaintiffs’ case against IVC filter manufacturer Cook through the efforts of the PEC.

March 5, 2015 – Attorneys for Freese & Goss have won yet another mesh case in the ongoing pelvic mesh litigation, this time against Johnson & Johnson over their TVT-Abbrevo sling for urinary incontinence.  After nearly 8 weeks in Bakersfield California, a jury found Johnson & Johnson liable for defective design, inadequate warnings, and misrepresentation.  In addition to awarding $700,000 for actual damages, the Jury also sent a strong message to Johnson & Johnson by awarding punitive damages in the amount of $5,000,000.  In California, punitive damages require the jury to determine that the defendant acted with malice, oppression, fraud, or despicable conduct.

This case is the third victory in a row for Freese & Goss, all of which involved polypropylene devices manufactured for the treatment of stress urinary incontinence, and self-servingly described by defendants as the “gold standard.”   We would also like to thank the attorneys at Cartmell & Wagstaff who tried the case with our firm.

As the New Year starts, we’d like to update everyone on the status of Pelvic Mesh litigation; 2014 was a busy year marked by numerous trials.  While Plaintiffs did not win all cases that went to trial, they were successful in the majority of trials to reach the jury. Here, we’ve attempted to summarize those victories, starting with the first two in 2012 and 2013 respectively.  In total, 2014 was marked by five verdicts for the plaintiffs, two of which were tried by our attorneys at Freese & Goss:

  • July, 2012: The first Pelvic Mesh case against Bard was tried in Bakersfield, California. The device at issue was Bard’s Pelvic Organ Prolapse device, the Avaulta.  The jury there awarded the Plaintiff, and her husband, a combined $5.5 million.  More recently, Bard’s appeal to the California Appellate Court was denied, and the verdict upheld.  Scott v. C.R. Bard, Inc.[i]
  • February, 2013: A New Jersey jury found Johnson & Johnson subsidiary Ethicon liable for $11.1 million in compensatory and punitive damages related to the implantation of their pelvic organ prolapse device, the Prolift. Gross v. Ethicon.[ii]
  • February 2014: In Texas state court, Freese & Goss won the first case involving a product for stress urinary incontinence. There, Johnson & Johnson was held liable for $1.2 million in damages for injuries related to the implantation of their TVT-O device.  Their appeal is still pending.  Batiste v. McNabb.[iii]
  • September, 2014: In another Texas State Court trial, Freese & Goss established the first verdict against Boston Scientific over their Obtryx device. This was the first verdict against Boston Scientific involving a sling.  The jury awarded both compensatory and punitive damages, totaling over $72 million.  Due to tort reform in Texas, the award was immediately reduced to $32 million.  Boston Scientific has said they will appeal the verdict.  Salazar v. Lopez.[iv]
  • September, 2014: Plaintiff’s in the West Virginia state court also won their case against Ethicon over the TVT-O device for stress urinary incontinence. There, the jury awarded plaintiff $3.27 million.  Huskey v. Ethicon.[v]
  • October, 2014: AMS parent company Endo announced plans to settle all mesh claims against them globally. That is, their intent is to settle all claims for all plaintiffs at one time.  The terms of the settlement are still unknown and in development.[vi]
  • November, 2014: Four plaintiffs had their cases tried concurrently in Miami Florida by Judge Goodwin, their cases all involved the implantation of Boston Scientific’s pelvic organ prolapse device, the Pinnacle. Jurors awarded the plaintiffs $26.7 million.  Eghnayem v. Boston Scientific Corp.[vii]
  • November, 2014: Four women had their cases tried concurrently in West Virginia over the implantation of Boston Scientific’s Obtryx device. The jury awarded the plaintiffs a total of $22.5 million in compensatory and punitive damages.  Tyree v. Boston Scientific Corp.[viii]
  • December, 2014: Judge Goodwin, who oversees the vast majority of mesh claims in various West Virginia MDLs, was quoted in Bloomberg, stating, “I can’t imagine a corporation facing potentially billions of dollars in verdicts wouldn’t find it advisable to try to achieve a settlement for a much lesser sum.” This could be an indication that Judge Goodwin is preparing to put additional pressure on defendants to resolve cases against them.[ix]
  • January, 2015: Our firm again prepares for trial, this time in Bakersfield, California. The trial involves another of Johnson & Johnson’s stress urinary incontinence, the TVT-Abbrevo, essentially a slightly shorter version of the TVT-O.

We would also like to note that many clients have reported to us various forms of unethical behavior, as well as what are clearly scams intended to victimize those already hurting.  In most cases, clients report receiving cold-calls from what appears to be a foreign call center, and the caller typically knows a disturbing quantity of personal information such as surgery dates, addresses, and social security numbers.  The scam typically revolves around some type of settlement or other monetary award being held for the client.  In some instances, the caller has requested some form of ‘processing fee,’ personal information, and/or case status.  In the most egregious cases, they have represented themselves as being employed by Freese & Goss, and that we were terminating the client’s representation.  Whatever the variant of the call, these are all scams.  We encourage you, as we have done, to report these violations to your State Bar Association, local authorities, and the Federal Trade Commission.  We also urge you to call us and report what has happened as we are still attempting to have various authorities take action.

[i] Jef Feeley, Bloomberg.com, Bard, Doctor Ordered to Pay $5.5 Million Over Implant, July 25, 2012.

[ii] Joshua Alston, Law360, NJ Judge won’t Disturb $11M Award in J&J Mesh Mass Tort, July 17, 2014.

[iii] Amy Silverstein, Dallas Observer, Women vs. Big Pharma in the Battle Over Trans-Vaginal Mesh, May 1, 2014.

[iv] Jef Feeley, Bloomberg.com, Boston Scientific Ordered to Pay $73 Million over Implant, September 9, 2014.

[v] Jessica Dye, Reuters.com, Jury Hits Ethicon with $3.25 mln Verdict in Mesh Case, September 5, 2014

[vi] Jef Feeley, Bloomberg.com, Endo Said to Pay $400 Million Plus in Vaginal-Mesh Accord, October 1, 2014.

[vii] Jef Feeley & Susannah Nesmith, Bloomber.com, Boston Scientific Loses First Federal Trial Over Mesh, November 13, 2014.

[viii] Jef Feeley, Bloomberg.com, Boston Scientific Vaginal-Mesh Victims Win $18.5 Million, November 20, 2014.

[ix] Jef Feeley, Bloomberg.com, Bard Judge Says Implant Maker Facing Billions in Verdicts, December 11, 2014.

Dallas, TX – Late on September 8, 2014 a 12-person jury awarded Martha Salazar and her husband a total of $73.4 million for injuries suffered from a plastic mesh sling for stress urinary incontinence.

Judge Ken Molberg presided over Salazar vs. Lopez (and Boston Scientific, Corp. et. al.) in the two-week trial in Texas’ 95th Judicial District Court. Plaintiffs’ attorneys Tim Goss, David Matthews, Richard Capshaw, Sheila Bossier, and Kevin Edwards showed evidence that Martha Salazar was a 38 year old working mother of two children on the day she was implanted with the plastic mesh which destroyed her health and quality of life. Boston Scientific’s Obtryx mesh left her with nerve damage, permanent pain, and it triggered 42 additional procedures to treat mesh injuries including several attempts at mesh removal.

Over a seven-year period, Boston Scientific failed to warn doctors and women of the Obtryx sling’s serious complications, though Boston Scientific was well aware of them, according to Tim Goss. Ms. Salazar’s attorneys also charged that Boston Scientific withheld from doctors – including Ms. Salazar’s implanting surgeon, Dr. Lopez – a clinical study that showed serious complications. Despite the study being funded by Boston Scientific, the authors ultimately concluded that long-term data on the Obtryx was needed, and that predecessor devices should be used instead. Internal e-mails from Boston Scientific’s marketing department further instructed sales representatives not to share the study with their physician-customers.

The Salazars were awarded a total of $23,465,000 in actual damages and $50 million in punitive damages. The jury deliberated less than four hours.

Multiple media outlets have covered the case and verdict, including:
The National Law Journal
Reuters
Bloomberg
Dallas Business Journal
Dallas Observer
Houston Chronicle

DALLAS, TEXAS – On April 3, a 12-person jury awarded $1.2 million to a Texas woman injured by a defective plastic transvaginal mesh sling made by Johnson & Johnson. J & J’s Ethicon division made the TVT-O sling that had been implanted into Linda Batiste for stress urinary incontinence. Freese & Goss of Dallas represented Ms. Batiste, along with Matthews & Associates, based in Houston, and Kansas City law firm Cartmell & Associates.  The case has since been featured in on TV with CBS News in Dallas and San Antonio, and in print with the Dallas Observer and Texas Lawyer magazine.

As lead litigators for Ms. Batiste, Rich Freese and Tom Cartmell presented evidence that Johnson & Johnson knew it had a safer, better sling product, yet the company continued to make and market the inferior mesh that was used on Ms. Batiste. J & J’s own documents showed the company recognized that it had developed a better product – laser as opposed to machine cut mesh – but did not take the inferior product off the market. Inside emails showed Ethicon executives and marketers worried that removing the inferior product from the market meant the company would lose years of safety data – a valuable marketing tool – which it had accumulated for its machine cut mesh. Removing the product (which is still marketed today) could also show the company to be making a tacit admission that the machine cut mesh was inferior and even defective and should have been removed earlier.

Meanwhile, J & J continues to stonewall — as evidenced in its own internal documents – against any charges that its machine cut mesh is not as safe and effective as its laser cut mesh. Ethicon continues to use and defend its machine cut mesh in its TVT and TVT-O products.

Jury awards $3 Million for Topamax Injuries

[ Tuesday, March 11, 2014 ]

PHILADELPHIA — After a month-long trial led by attorneys Tim Goss and David Matthews, a 12 person jury awarded a 5-year-old girl $3 million for severe cleft lip and cleft palate injuries caused by Johnson & Johnson’s anti-seizure medication Topamax.   The manufacturer of the drug, Johnson & Johnson’s Janssen, argued  that Topamax does not cause birth defects, but if it caused the injuries to Kelly Anderson’s daughter, the comapany claimed that it had warned Mrs. Anderson that Topamax could cause birth defects.   This argument was flatly rejected by members of the jury, one of whom stated after the trial that if a company sees signs that a drug is causing birth defects, it needs to let doctors know.

Topamax was prescribed to Kelly Anderson for migraine prevention.  All drugs have a pregnancy risk category which doctors use for prescribing medicines.  Although there were multiple red flags that Topamax caused birth defects in humans, Janssen did nothing to change the risk category; as a consequence, doctors continued to prescribe the medication to women of child bearing years.

Janssen made over $2 billion annually on Topamax, and lawyers for the Anderson family argued that profit was the motivation for the lack of a label change.  The jury agreed.

Topamax Lawsuits won by Plaintiffs

[ Wednesday, January 29, 2014 ]

Johnson & Johnson lost two important bellwether trials last fall regarding its Jannsen Pharmaceuticals anti-seizure medication Topamax. Philadelphia juries found that two mothers and their doctors were not properly warned about the birth defect dangers of Topamax. They agreed with plaintiffs that Topamax taken during pregnancy can cause deformities such as cleft lip or cleft palate.

Cleft lip or cleft palate occurs when the lip or palate fails to fuse. This deformity can cause problems in eating, talking, even in social standing. People born with cleft lip or cleft palate can turn shy and withdraw from society to their great detriment. People suffering from cleft palates are also at higher risk of developing ear infections.

Some 140 Topamax Lawsuits have been filed for children suffering from cleft lip or cleft palate after having been born to mothers who took Topamax in the first trimester of their pregnancy.

A Philadelphia jury awarded Haley Powell $11 million in damages. Ms. Powell’s son was born  in 2007 with a cleft lip and other deformities. The jury’s award is meant to cover medical expenses that will include additional surgeries. Unfortunately for Ms. Powell and her child, the verdict is likely to be appealed by defense. Virtually all such verdicts are appealed by defense, and most are eventually lowered or even thrown out by appeals courts.

The verdict in the Powell case is the second win in two trials for plaintiffs against Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson. In October 2013 a jury awarded a mother and her child $4.02 million in a Topamax lawsuit. Trial records in that case showed Janssen  withheld Topamax safety information from both consumers and medical professionals.

That jury awarded $4 million to April Czimmer, whose son suffers several birth defects that the jury agreed occurred as a result of Ms. Czimmer’s taking Topamax while pregnant. At trial, Ms. Czimmer testified she took Topamax during six months of her pregnancy. Her attorneys charged, and the jury agreed, that Janssen failed to give adequate warnings about Topamax birth defect risks.

Johnson & Johnson argues in this case and others that it has provided adequate warnings regarding Topamax and pregnancy.

The FDA in 2011 issued a warning about Topamax increasing the risk of oral cleft birth defects. The agency warned doctors not to prescribe the drug to pregnant women, or to women who could become pregnant.

Topamax was approved by the FDA in 1997 and has been available since 2006. Topamax is approved for treating epilepsy, migraine headaches, weight loss.

If you or someone you love has been injured by Topmax, contact a Topamax Lawyer at Freese and Goss, or email us for a free legal consultation.

To date, two cases regarding mesh used for POP have been tried thus far, and both were won by plaintiffs. The second trial ended on Feb. 25 when a NJ jury delivered a $3.35 million judgement, as well as $7.76M in punitive damages,  against Johnson & Johnson for a 47-year-old South Dakota woman who suffered more than a dozen revision surgeries after being implanted with J & J Prolift mesh for POP in 2006. It’s good news, generally, for most TVM cases, that she won her verdict; but we must keep things in perspective.

Please understand that this verdict will most likely be aggressively appealed by defense, as most such verdicts are, which often leads to a substantial reduction in any final award. Large Jury awards are, unfortunately, more often than not, reduced in such cases by appellate judiciary, or else by negotiated settlements which plaintiffs often feel compelled to accept in order to avoid risking the total overturning of the original verdict by appellate courts.

In addition, the South Dakota woman suffered more than a dozen revision surgeries following her initial mesh implantation; so her case must be viewed on its own merits, as all such cases will be (hopefully). This NJ case also involved transvaginal mesh for pelvic organ prolapse (POP), as opposed to the sling for stress urinary incontinence (SUI), which, for several reasons, presents more difficulties for plaintiffs.

The difference between Mesh (POP) and Sling (SUI)

We continue to be hopeful about both our cases involving transvaginal mesh used for POP repair and our sling cases used for SUI repair. But please understand that while the FDA in Sept. 2011 questioned the risk-benefit analysis of mesh vs. traditional (Burch method) repair for POP and called for further studies, the agency also seemed to condone the continued use of mesh slings for Stress Urinary Incontinence (SUI). At this moment, those differing FDA views would appear to make those cases for plaintiffs with POP surgeries stronger than those for plaintiffs who were implanted with slings for SUI surgeries.

Long War

Drug and device litigation is virtually always a long war. As hopeful as this latest verdict appears – and we are hopeful right along with you – we would be wise to view it as one skirmish won in this long war as we continue to fight for you on the merits of your individual case. Please be patient as we move forward. As always, please keep us informed of any subsequent surgeries or other developments in your condition, and please keep us updated with any changes in your contact information

This week marked the start of the first of over 1,800 trials against New Jersey defendant and pelvic mesh manufacturer Gynecare (Johnson & Johnson).  The Plaintiff, 47-year-old Linda Gross of South Dakota, experienced devastating injuries following implantation of Gynecare’s device for treating pelvic organ prolapse, the Prolift.  This is the same device Gynecare sold without FDA clearance, and chose to remove from the market only a few months ago.

In a standing-room only courtroom, attendance, opening arguments began with plaintiff’s counsel delivering a forceful message of the catastrophic consequences associated with these devices.  Further, plaintiff’s counsel emphasized the plaintiff’s position that the manufacturer was aware of the nature and magnitude of the injuries associated with the product, yet failed to take remedial action or even warn of the dangers.

Conversely, the defense’s opening statement chose to focus on the individual aspects of the client, the client’s medical history, and the ‘epidemic’ that is pelvic organ prolapse.

While positions and strategy may change, these events allow some limited insight into how future trials may progress. Currently, it would appear the defense would rather focus on placing the blame on patients, rather than defending the merits of their own products, a curious choice.

Freese & Goss founder Tim Goss was in New Jersey to hear the opening arguments in the case. Mr. Goss is scheduled to try a similar type of case, against American Medical Systems in California in May 2013. But unlike the NJ case, the California case concerns a slightly different product: the AMS Monarc sling, which is used for stress urinary incontinence (SUI).

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