Sacramento, CA, 10/30/2015 /SubmitPressRelease123/
Two consecutive wins for mesh manufacturers Ethicon and Boston Scientific are having a stinging effect both on plaintiff attorneys and the most injured sufferers of the transvaginal mesh debacle. A failure to satisfy the burden of ‘Specific Causation’ in both Winebarger, et al. v. Boston Scientific and Cavness v. Ethicon is evidence that jurors are demanding more evidence for proving that the device is defectively designed.
‘Specific Causation’ is evidence of why the particular design defect of the medical device caused the specific injury to the Plaintiff. The Reasonable Juror understands the basic proposition that anytime a device is implanted in the body, there will be a risk of pain related to the device and the body to some extent will react against the device since it is a foreign substance. The Reasonable Juror will see an injured woman walking into the courtroom looking quite well but complaining of severe debilitating and disabling pelvic pain. The injured will not be missing an extremity, she won’t be in a wheelchair, and she won’t have any obvious bodily injury. The Reasonable Juror in the above cases were demanding more medical evidence than the attorneys representing the injured women were prepared to present to overcome the burden of proving ‘Specific Causation’.
Injured women must understand what the Reasonable Juror understands and they must understand that ‘Pain Is Just Pain’ to the Reasonable Juror and any device implanted in the body can cause pain. The Reasonable Juror is demanding more from the Plaintiffs.
The Reasonable Juror wants to understand what specific structure in the body is injured? They want to understand why the device injured that specific structure? They want to understand what bodily functions these injured structures are responsible for? They want to understand what treatments has the patient received to help with pain caused by injury to these specific structures? They want to know what treatments are required over a lifetime to treat the injury to the specific structure? They want to understand the disability related to the injury that was directly caused by the design defect?
Injured women must understand that a well developed vaginal mesh case takes two to three years to develop from a medical standpoint. It takes specialized care, it takes targeted treatments, and it takes a rational treatment plan documented to the injured woman’s life expectancy.
If there are symptoms of Pudendal Neuralgia the injured must travel to the experts in the field for diagnosis and treatment. If there are symptoms of Myofascial Pain the injured must be evaluated by clinicians with the skills to both treat and diagnose the problem. If symptoms and disability related to Complex Regional Pain Syndrome is present it must be diagnosed and treated. Only with specific diagnoses the Reasonable Juror will be able to understand why the device is defective, how it puts nerves in peril, how it puts muscles of the pelvic floor in peril, and how key functions involving sexuality, mobility, bowel and bladder function are compromised by the multiple design defects. Otherwise, ‘Pain Is Just Pain’.
Early in 2013, I had the opportunity to participate in focus groups that brought in twelve Reasonable Jurors from the street and it was quite clear that ‘Pain Is Just Pain’ to the Reasonable Juror. Only after there is a diagnosis of which structure is damaged using targeted treatments can models and videos of the female pelvis be utilized to describe how the design defect damaged the specific structure and caused pain. Only if the injured woman is medically worked up and treated over time by the leaders in the field of pelvic pain will the evidence for proving ‘Specific Causation’ be available.
For the most injured, the message must continue that you must seek the care of the experts in the field for both health and the necessary proof needed in litigation. For the attorneys who see pelvic pain on a medical record, ‘Pain Is Just Pain’ to the Reasonable Juror and these clients must find the experts in the field.
Dr. Greg Vigna, MD, JD
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