Missouri appeals court revives pelvic mesh suit against BD’s Bard

A Missouri state appeals court last week revived a pelvic mesh product liability lawsuit against Becton Dickinson & Co. (NYSE:BDX) subsidiary C.R. Bard, ruling that a lower court was wrong to exclude prior verdicts that went against the company.

Barad and co-defendant Boston Scientific (NYSE:BSX) escaped the suit in February 2016 after a Kansas City jury voted 10-2 that their implants were not defective and didn’t cause plaintiff Eve Sherrer’s injuries. Sherrer had alleged that Bard’s Align and Boston Scientific’s Solyx products used a polypropylene mesh that reacts to tissue by becoming brittle, and that the companies failed to warn patients about the products’ attendant risks, seeking $28 million in damages.

After her bid for a new trial was rejected, Sherrer appealed to the Missouri Court of Appeals for the Western District, arguing that she should have been able to present evidence of Bard’s 1994 criminal conviction over an unrelated cardiac product. Bard pleaded guilty to “391 counts of conspiracy, mail fraud, false statements, and adulterated product/failure to file medical device report in the United States District Court for the District of Massachusetts, requiring it to pay criminal fines in the amount of $30,500,000,” according to court documents.

The Missouri appeals court found that “it was prejudicial error to exclude evidence of Bard’s prior criminal convictions when material fact issues depended for their resolution on Bard’s credibility.”

“The trial court committed reversible error when it refused to permit Sherrer to cross-examine adverse party witness [Bard president & COO John] Weiland, Bard’s corporate representative, about Bard’s prior criminal convictions,” the appeals court found in its unanimous ruling. “The trial court’s judgment is reversed insofar as it entered judgment in favor of Bard and against Sherrer. The trial court’s reversible error in excluding impeachment evidence on the issue of Bard’s credibility has no bearing, however, on the judgment in favor of Boston Scientific and against Sherrer.”

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