In November, a Dallas appellate court reversed a $1.2 million jury verdict rendered against Johnson & Johnson for allegedly designing a defective pelvic mesh product.

On Dec. 18 the plaintiff in the case filed a petition for review with the Texas Supreme Court, asserting her case presents a question that will impact thousands of others: what evidence is necessary to satisfy the causation standard in a products liability case involving an implanted medical device.

Plaintiff Linda Batiste, who has a “complex” medical history, filed suit against Johnson & Johnson and its subsidiary, Ethicon, in Dallas County, alleging she was injured by the defendants’ polypropylene mesh.

A jury found the medical product, the TVT-Obturator, was defectively designed, awarding Batiste $1.2 million in damages, court records show.

Johnson & Johnson appealed the judgment in July 2014, arguing the trial court erroneously: excluded all FDA evidence; excluded evidence from independent physician organizations that contradicted the plaintiff’s theories of injury; and admitted evidence of other lawsuits and unverified issue reports.

On Nov. 5 the Fifth Court of Appeals found that Batiste was required to prove a specific defect in the TVT-O, and not simply the device itself, which is known to sometimes cause a number of complications.

“Because Batiste failed to offer legally sufficient evidence that any alleged defect in the TVT-O was the producing cause of her injuries, we reverse the trial court’s judgment and render judgment that Batiste take nothing,” the Fifth Court opinion states.

“Although Batiste alleged the TVT-O was defective based on its use of mechanically cut, heavyweight, small-pore mesh that was subject to degradation and particle loss, she failed to produce more than a scintilla of evidence that any of these alleged defects caused her injuries.

“Accordingly, the evidence is legally insufficient to support the jury’s verdict.”

In her petition, Batiste is asking the high court to clarify whether the Dallas appeals court accurately interpreted Texas common law to hold a product liability plaintiff must isolate the cause of her injuries to a “specific defect” in a medical device case.

Court records show Batiste has a complex medical history. She has had nine abdominal surgeries, including two “C-sections,” two open abdominal procedures, and five laparoscopic procedures. In 2003, she had a stroke that left her disabled. She had a second stroke in 2007.

Due to spinal disease, she has undergone four surgeries in her lower back and one surgery in her neck. Following a heart attack, a stent was placed through her femoral artery to address a ninety-five percent blockage in her right coronary artery.

Batiste has also been diagnosed with chronic obstructive pulmonary disease, a result of smoking and suffers from poorly controlled diabetes.

The TVT-O was implanted to treat her stress urinary incontinence, court records show.

Batiste is represented in part by Tim Goss of Freese & Goss, a Dallas firm.

Johnson & Johnson is represented in part by Scott Stolley, attorney for the Dallas law firm Thompson & Knight.

Supreme Court case No. 15-0975

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