Bard wins 3DMax hernia mesh appeal

The New Jersey Superior Court’s Appellate Division this week tossed a win to Becton Dickinson & Co.‘s (NYSE:BDX) C.R. Bard (NYSE:BCR), refusing to reinstate a hernia mesh product liability suit on grounds that expert witnesses couldn’t prove the design of the product was defective or that significant negligence occurred.

In the case, plaintiff Kemuel Goodson claims that implantation of Bard’s 3DMax polypropylene mesh during a laparoscopic bilateral inguinal hernia repair in 2006 caused a number of different complications, including remaining pain and the removal of a testicle, and required a number of future procedures.

In his original suit, the plaintiff asserted claims of defective design, negligence and fraud and misrepresentation.

Bard moved for a summary judgement, which was granted, and the plaintiff appealed, claiming the court “erred in granting summary judgement to the defendant on the plaintiff’s claims of design defect and negligence,” according to court documents.

After review, expert testimony from the plaintiffs three expert witnesses was not found to meet the requirements for claims of defectiveness, the three-judge appellate panel decided.

“In the instant case, none of the experts specifically opined that 3DMax is defective and that this defective design caused the medical complications complained of by the plaintiff. Instead, plaintiff’s three experts gave general opinions about the various medical risks of the product that can cause complications. This is not enough to overcome the summary judgement standard,” the three-judge appellate panel wrote. “In addition, no expert presented an alternative, feasible design for the 3DMax. As previously stated, this is one of the determining factors in a defective design case.”

The dismissal of the negligence claims were also affirmed, with the court saying that to establish such a claim, the plaintiff must show that the “defendant had a duty to warn, that the defendant breached that duty, and that the preach proximately caused the plaintiff’s injury,” according to court documents.

The operating surgeon previously testified that while he wasn’t specifically informed of some complications associated with the hernia mesh, he was aware of those possible side effects as associated with meshes in general, including those experienced by the plaintiff.

“Notwithstanding, Dr. Middleton testified he went over the risks of the mesh surgery with plaintiff prior to the surgery, including the risk of chronic pain, numbness, hematoma, and mesh infection,” the panel wrote. “As plaintiff’s physician, Dr. Middleton was serving in the role of a learned intermediary. Despite the doctor’s decision to not read the manufacturer’s warnings, that decision does not alter his learned intermediary role nor does it impose liability on defendants for failure to warn.”

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