Dallas Transvaginal Mesh Attorney

Have You or a Loved One Been Injured Due to a Transvaginal Mesh Implant? Call Our Attorneys Today

Patients who have suffered side effects from the surgical use of transvaginal mesh may have standing to bring a claim against the manufacturer of the device.

The first thing you need to know about a transvaginal mesh injury claim is that while transvaginal mesh injuries may be a mass tort, each and every case requires individual examination and attention from a qualified legal professional so that the injured party may have the best opportunity to obtain a fair recovery. Though the victims of transvaginal mesh injuries all share a common cause of action, the variety and extent of injuries incurred from transvaginal mesh are unique to each individual claimant. This distinction explains why each transvaginal mesh case is unique and should be handled by your attorneys as a unique and distinct legal matter.

What is Transvaginal Mesh?

Transvaginal mesh is a surgical mesh, implanted through the abdomen or vagina. It is essentially a man-made net, of sorts, which is anchored for the purpose of acting as a support system to literally help restrain certain parts of the patient’s anatomy in the absence of properly functioning pelvic muscles. It was approved by the FDA in 2002 for the treatment of Pelvic Organ Prolapse (POP) and Stress Urinary Incontinence (SUI). POP is a condition in women where the muscles around the pelvis weaken, which could allow organs like the uterus or bladder to drop into the vagina. SUI is a condition that results from a lack of strength in the muscles of the pelvic floor. Also called effort incontinence, it can result in the involuntary leakage of urine, leading to a negative impact on quality of life.

Transvaginal mesh is used following surgery on the affected pelvic area, to provide additional support for the weakened tissue. The term “mesh” comes from the synthetic material used in the sling procedure, which usually resembles the shape of a small ribbon. The FDA estimates approximately 75,000 women had POP surgery in which the mesh was implanted, while roughly 200,000 women underwent a similar procedure for SUI.

Many different manufacturers make transvaginal mesh devices for public use, but the 4 with the greatest market share are American Medical Systems (AMS), Johnson & Johnson (Gynecare), Boston Scientific, and Bard.

What are the Complications from Transvaginal Mesh?

A number of issues have been associated with the use of TVM in prolapse surgeries, ranging from minor to very serious. These complications include:

• Erosion of the device through the vaginal wall (also called exposure, extrusion, or protrustion)
• Pain and discomfort, including during sex (also called dyspareunia)
• Infection and bleeding
• Painful urination
• Bowel, bladder, and blood vessel perforation
• Vaginal shortening and tightening
• Incontinence

It should be noted that with the possibility of erosion increases the risk of prolapse occurring again, as the implant was unsuccessful, causing pelvic organs to drop again. According to an FDA study, over half the women who experienced erosion from transvaginal mesh needed an additional surgery to remove the device, some requiring more than one surgery.

The Correct and Incorrect way to Pursue a Claim Against a Manufacturer of Transvaginal Mesh

As with many things, there is a right and wrong way to pursue a claim against a maker of transvaginal mesh. The pursuit of such a claim is a complex matter, as different jurisdictions may have different statutes of limitations, different evidentiary concerns associated with multi-district litigation (MDL), and other problems that arise from the aforementioned mass torts. With these issues, and make no mistake others, it is essential you be represented by a Dallas medical malpractice law firm with extensive experience handling complex product liability cases.

Another issue that arises for victims is how the law firm they choose handles their case. Many firms prefer to lump victims into a group of cases and settle for whole sum. Then, they evenly divide whatever settlement they secure among their clients. This may seem beneficial for a victim who has suffered minor injuries, but how is this fair to a transvaginal mesh victim who has incurred severe problems from the use of the device? Our attorneys treat each victim individually and resolve cases based on their individual merit, not by an arbitrary grouping of victims.

How Defective Product Injury Litigation Works

A surgical device such as a transvaginal mesh, or TVM, just like any other product introduced for public use, is required to, more or less, act as advertised, without any unintended, catastrophic side effects. You use a product with the expectation that it has been adequately tested and researched. Much like you would not expect a hair dryer to explode in your hands, you should have the reasonable expectation that you will not be harmed by using a medical device such as a TVM.

The physiology and chemistry of the human body is, of course, incredibly complex. No manufacturer of a surgical device can possibly anticipate each and every complication that can arise from its use. But when hundreds, or even thousands, of people suffer from significant side effects – which appear to be the case in relation to TVMs – those victims can likely assume that the manufacturer of the device did not do an adequate job of testing it. It is extremely vital to note that a defective product case cannot, in the vast majority of instances, be won by merely hoping that the manufacturer will be found guilty of negligence due to a technicality. The reality is that, when pursing a defective product injury lawsuit, the victim, or plaintiff, must provide convincing proof that the product’s manufacturer committed negligence because it either knew, or should have known, that the product could cause severe harm before introducing that product to the public. Many times in defective product cases we find that a manufacturer put its own profits ahead of the safety of the consumers using the product. When this is proven to be the case, the defendant is held liable and is often ordered by juries to provide compensation to claimants.

How Class Action Lawsuits and Mass Torts Differ

A product liability injury case involves a great deal of complexity and intricacy, and presents several challenges. Many of these challenges are caused by the fact that several plaintiffs are simultaneously pursing the same defendant for the same negligent act. Think about how complex a case would be involving an automobile accident where one driver hit 10 other cars. If that case found its way into a courtroom, the presiding judge would group all 10 separate cases into one single lawsuit. The court will do everything it can to eliminate the presence of multiple identical lawsuits.

A case involving a defective product injury works in a similar manner. When a defendant commits a single, wrongful act against numerous people, many times the victims will work collectively to pursue a claim against the defendant, based on their shared and common cause of actions. This is known as a mass tort. However, a mass tort should not be confused with a class action. In a class action, every plaintiff has both the same cause of action and essentially the same claim. However, while each plaintiff involved in a mass tort has the same shared cause of action, each plaintiff also has his or her own individual claim.

Basically, it boils down to this – in a class action, every plaintiff gets an identical settlement, irrespective of how they were personally affected. In a mass tort, each plaintiff has his or her own claim, but gets what he or she deserves based on their unique side effects, injuries, etc.

There are a couple of other ways in which class action suits are different as well. The first is that in the event of a class action suit, the court will basically let one attorney represent all of the plaintiffs. A defective product injury victim living in Texas, who was injured in Texas, could be very uncomfortable with being represented by an attorney in New York, for instance. The second difference is that, making the assumption that this predetermined lawyer either secures an out-of-court settlement or wins in a trial, the amount of compensation awarded could be disproportionate to the damages that have been incurred by the victim.

Here’s an example of how difficult it can be for a plaintiff to be properly compensated in a class action lawsuit. In 2009, consumers filed a class action suit against Kellogg Company, claiming that Kellogg falsely advertised that two of its breakfast cereals, Rice Krispies and Cocoa Krispies, helped support the immune system. As many corporations do when facing this kind of legal action, Kellogg agreed to a $2.5 million settlement. However, while the attorneys involved in the case made thousands and thousands of dollars, all the plaintiffs “won,” so to speak, was a $5 reimbursement for each box purchased – with a maximum of three boxes, or $15. The value of the suit was basically nil for the plaintiffs, while the lawyers made a killing. There are some instances where a class action suit can benefit a plaintiff. However, a transvaginal mesh lawsuit is not one.

How Mass Tort Cases Work

A panel of federal judges called the United States Judicial Panel on Multidistrict Litigation reviews all major product liability cases that harm multiple persons. In doing so, the panel of judges will determine whether or not a particular defective product claim meets the requirements such that the court should intervene and establish a mass tort. Once this panel determines that a particular defective product claim does indeed determine that the plaintiffs should bring their claim as a mass tort, then a single judge will be appointed to oversee the discovery phase of the case. In essence, a group of attorneys approved by the panel will gather all of the evidence against the defendants and establish the defendant’s liability based on said evidence, in accordance with the procedural rules of federal court. After the liability portion of the mass tort is established in federal court, the presiding judge will then send the cases back down to the lower courts to be resolved on an individual basis, yet based on the evidence produced in the collective discovery phase.

In the lower courts, each individual claimant will have the opportunity to file suit and bring their claim against the defendant, using the evidence gathered in the consolidated discovery phase. Since every state has their own unique laws regarding the types of damages that are recoverable in a product liability case, each individual claim is going to have a different statute of limitation and value, dependent upon the state where the victim is able to bring their claim; generally, the state in which they live.

The defendants will then try to set precedent in the lower courts by winning a few cases known as bellwether cases. If the defendant can win enough of their bellwether cases, they can discourage other claimants from filing suit. In other words, in the bellwether cases, the defendants will try to show all other claimants and attorneys that they will lose if they too try to beat the defendants in court.

The Importance of the Bellwether Cases

As mentioned earlier, before a TVM victim can bring an individual claim against the manufacturer, as with most mass tort claims, a discovery phase will take place between a few plaintiffs and the defendant. To oversee this motion, the United States Judicial Panel on Multidistrict Litigation will appoint a federal judge. Both the plaintiffs and the defendant will be tasked with obtaining and providing evidence towards the transvaginal mesh claims, in an effort to strengthen or mitigate liability respectively. Rather than every potential TVM claim going through their own discovery portions, the results of the JPML motion will apply to every case throughout the nation.

Once both parties and the judge are satisfied with the discovery motion, those who have experienced a transvaginal mesh injury can bring a claim in their jurisdiction. It should be noted that the while the statute of the limitations of the state where the claim is brought will apply, the evidentiary standard will be governed by the Federal Rules of Civil Procedure. This is because the realm of the original JPML motion is federal.

As you might expect, when claims are indeed brought, a windfall of sorts occurs, especially in an arena like Dallas County. In an effort to increase efficiency and not backlog the court system, the respective jurisdictions will often lump a few plaintiffs into a single claim to develop a perspective on TVM cases moving forward. Unfortunately, this is an outlet for the defense to spend huge amounts of money to set precedence for future individual claimants. If successful, it may empower them to reduce the general settlement coffers or seek to flat drop the claims. On the other hand, if the verdict is plaintiff-friendly, the defendant could seek to quickly settle all of the claims rather than risk more litigation.

Either way, an experienced transvaginal mesh attorney is needed for a victim to obtain proper compensation. Once the bellwether cases are completed, and especially if they are favorable to the victims, litigation may quickly proceed. As mentioned, favorable precedent for the victims could also mean a quick settlement offer from the defendant.

The Statute of Limitations

You may not be familiar with the term “cause of action,” but it is critically important to your TVM defective product litigation. When a defendant owed you a duty of care and violates that duty, that creates a cause of action. And when you have a cause of action, you are eligible to pursue compensation from that defendant. However, every cause of action has a “shelf life” of sorts that is known as the statute of limitations, a term you have no doubt heard before. When the statute of limitations expires, your cause of action runs out. And if that happens, you will not longer be able to pursue restitution from the defendant no matter how strong your case may be.

As with nearly all components of a defective product case, there are variables that affect the statute of limitations. They can vary from state to state and even by the kind of cause of action involved. However, a plaintiff typically has two years from the date that a duty was breached in order to file a lawsuit. However, in the case of a TVM defective product injury, when, exactly, does the clock start on the statute of limitations? Was it the day the TVM was implanted? Was it when you first noticed that you had suffered an injury? Was it the first day that you linked your injury with the TVM?

The court will always try to be as fair and reasonable as possible in regard to the statute of limitations so that it does not impinge upon the rights of a plaintiff to try and obtain fair compensation. There have, of course, been a number of defective product injury lawsuits decided in the past, and these decisions provide us with a wealth of case law. Through careful analysis of case law, a rule of thumb has been established. According to this rule of thumb, the statute of limitations begins when a plaintiff should have known that the defendant’s negligence led to his or her injury. This date, in several past cases, has been determined to be the date when the U.S. Food and Drug Administration (FDA) issued a public statement warning of the side effects of a product. This statement makes it “common knowledge” that a manufacturer may have committed negligence and caused injury as a result.

As it relates to the TVM surgical device, that date was October 20, 2008. An updated warning was issued on July 13, 2011. In addition, there are also times where a manufacturer can voluntarily issue its own statement warning of potentially severe side effects associated with use of its product. This is another way in which common knowledge can be established.

Most product injury cases, however, come about because a victim developed an injury only after many years of using the product; long before any dangers became common knowledge. By the strict definition of statute of limitations, most causes of action in a defective product injury case have disappeared because the statute of limitations has expired. Due to this technicality, you need a skilled and seasoned transvaginal mesh attorney to be able to argue on your behalf that you should be granted an extension to your statute of limitations. Your lawyer needs to make a compelling argument that your statute of limitations should start on the date that the warning was issued by the FDA rather than on the date your TVM was implanted. Obviously, the defense in your case will vehemently argue the opposite; that your statute of limitations should not be extended. Your transvaginal mesh attorney will have to convince the court that the alternative statute of limitations should apply; this will be a hotly contested issue throughout the duration of the case. This is an especially challenging matter when you consider multi-district litigation, which will be discussed in detail in the next section.

The Complexity Involved with Multi-District Litigation

So the obvious question will be, “How long do I have to be able to file a lawsuit after common knowledge is established?” In Texas, for example, you have two years, in most cases, to take legal action, while in Arkansas the statute of limitations is three years. However, if there are multiple defective product injury victims, and they live in different states, which statute of limitations is observed?

Multi-district litigation provides the answer. As was previously covered, all subsequent cases involving a mass tort are determined by the representative case. And the judge presiding over that case will have a substantial amount of work. Not only will that judge have to deal with a trial that could last weeks or months, he or she will also have to employ a great deal of foresight, since the decision rendered in the representative case will affect several plaintiffs in the future. Normally, the representative case is heard in the jurisdiction of the defendant’s base of operations. The cases that follow will also be heard in the courts, and the rules and procedures of that court will be observed. However, the statute of limitations where the plaintiff resides will be observed as well (this is sometimes referred to as a “borrowed statute of limitations), in effect creating a hybrid of sorts between the two jurisdictions.

How You Can Obtain Fair Compensation

As stated previously, the judge presiding over the representative case will often compel a negligent defendant to place money in a trust that will be used to fund compensation awarded to future plaintiffs. This adds yet another layer of complexity to this kind of case, and makes having experienced legal representation even more of a necessity.

There are several nuances involved in filing a defective product injury lawsuit, and they can be overwhelming to a novice lawyer and seem like a foreign language to a non-attorney. Every court has extremely meticulous rules and procedures, and failure to follow them to the letter can result in a lawsuit being dismissed immediately. In addition, a defendant that loses a mass tort will often run out of money before all plaintiffs can obtain their compensation. Because of this, mass tort litigation often turns into a race against time as plaintiffs frantically rush to have their cases decided. And you also must provide an accurate calculation of your damages such as pain and suffering, lost wages and medical bills (known in legal terms as “proving up” your damages). It is imperative that you have a skilled defective product/product liability attorney working to protect your interests. The Dallas transvaginal mesh attorneys with Grossman Law Offices have two decades of experience in dealing with this kind of litigation, so we not only know how to act aggressively in order for you to be able to obtain compensation before a defendant’s resources are depleted, we also know how to accurately determine damages so that you are not short-changed.

How Grossman Law Offices Can Help

If you or someone you love has been injured by a transvaginal mesh device, please call the transvaginal mesh lawyers in Dallas with Grossman Law Offices at 1-855-589-5649 (toll free) for a confidential and free consultation. We will listen to all of the specific circumstances surrounding your case, and give you an honest assessment of the strengths and weaknesses of your litigation. We are standing by 24 hours a day, seven days a week to answer any questions you may have. Please give us a call and let us put our two decades worth of experience to work for you so that we can help you get the full and fair compensation to which you are entitled.

Who is Liable for My Injury?

The most likely liable party is the manufacturer of the transvaginal mesh device. When a product is placed on the market, consumers have a reasonable understanding of the product’s uses and potential malfunctions. A minor issue like pain can be associated with a number of products on the market, and actually may be the result of something other than the mesh. However, malfunctions like erosion, infections, or dyspareunia fall well beyond what consumers expect from a product. This heightened risk of injury places a manufacturer as the most likely to assume fault.

Though some may argue that a doctor or surgeon should incur some liability in a transvaginal mesh injury, this actually does not make much legal sense. For starters, surgeons use TVM on a number of patients suffering from POP, many of which do not see the complications listed above. Furthermore, transvaginal mesh should not be thought of in the same way as a prescription drug injury. In other words, the mesh is a device used to supplement a procedure aimed at strengthening pelvic walls. An injury from a drug like Actos is different, in that the doctor who prescribed the drug has a certain understanding of the side effects associated with the medication. Even then, doctors typically act in good faith with the information available to them and it is rare to find intended harm.

The next potential defendant victims of a transvaginal mesh injury refer to is the Food and Drug Administration. In almost every possible scenario, this is not an advisable route for compensation. In 1948, the Federal Tort Claims Act made explicit several situations in which the federal government could not be a party to a tort claim. The federal government is exempt from a number of possible claims, but most relevant to a transvaginal mesh injury, the government is exempt from claims against performance or an inability to perform a “discretionary function or duty.” This means that while the FDA’s goal is to keep the general public aware and safe, failure to do so is not an actionable offense.

Does my Transvaginal Mesh Injury Warrant a Lawsuit?

The answer is maybe. If a woman is suffering from minor complications like intermittent pain, there may not be enough damages to justify the high expenses of court costs and filing fees. On the other hand, some of the severe cited complications of TVM, like recurring prolapse or erosion of the medical device that require surgery to both repair the affected area and remove the mesh, are such that could certainly warrant filing a claim. These malfunctions are very counter-intuitive to what a patient may expect from the device and their damages probably do make good financial sense to pursue.

Our Transvaginal Mesh Attorneys Can Help

Armed with this knowledge, a victim should now be aware that a claim against a manufacturer, especially a mass tort against a manufacturer, requires an attorney well-versed in the intricacies of complex product liability litigation. It’s important to note that no two transvaginal mesh injuries in Dallas are alike, so the handling of their prospective cases should be treated singularly as well.

The transvaginal mesh lawyers at Grossman Law Offices have the experience and training to handle these complex cases, while keeping the process intimate for a victim. If you or someone you know has experience complications from transvaginal mesh, call us toll-free at 1-855-589-5649.