Are Punitive Damages More Likely If Bard Used Restricted Materials?
Last Updated on June 27, 2017
As reported just days ago, e-mails and other documents have come to light suggesting that C. R. Bard used material in its transvaginal mesh that it knew may be harmful. The product, polypropylene resin, is subject to a Material Safety Data Sheet from its own maker, specifically warning against the resin’s use in products intended for implantation or long-term exposure to patients.
Although the case has not yet concluded, it raises worrying questions about Bard’s approach to transvaginal mesh and women’s safety.
The e-mails, uncovered as part of the wider investigations into mesh products and their impact on women’s health, seem to suggest that executives attempted to hide the resin’s intended purpose from its manufacturer, aware that its use in mesh products would almost certainly not be approved.
The emails, dated between 2004 and 2007, reveal that an executive at Bard warned employees not to tell Chevron Phillips Chemical, the producer of the plastic material used in the mesh, that Bard was using it in the Avaulta mesh product. In one of the emails, the Bard executive noted that that Chevron Phillips “will likely not be interested in a medical application due to product-liability concerns.” This certainly makes it harder for Bard to argue that the related damages were unavoidable or unforeseeable. In fact, in light of these emails and the company’s apparent knowledge of its actions, Judge Joseph Goodwin of U.S District Court Southern District of West Virginia has ruled that the plaintiff may seek punitive damages, in addition to compensatory damages, if the jury finds that the company knowingly sold a product that was dangerous.
That’s just one case in one state court, but the message seems clear. If juries rule that Bard knew about potentially harmful effects of the resin, and still used it, punitive damages are likely to follow.
Although the case has not yet concluded, it raises worrying questions about Bard’s approach to transvaginal mesh and women’s safety – as well as questions about the possibility of punitive damages in ongoing TVM cases. In Bard’s case, knowingly releasing a product that contained a potentially harmful material could, if true, pave the way for more substantial settlements.
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