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Mistrial declared in surgical mesh case

CHARLESTON, W.Va. -- United States District Judge Joseph Goodwin declared a mistrial in the first of four pelvic repair device trials scheduled to take place in Charleston.

The case of Donna Cisson vs. C.R. Bard, a manufacturer of transvaginal mesh, got underway Monday, July 8. But on Wednesday, the judge granted a motion from the company's defense for a mistrial based on a witness response to questioning.

Goodwin told the parties it was the first time in nearly 20 years he had had a mistrial in a civil case. He scheduled the second trial to get underway July 29 with the selection of a new jury.

Plaintiffs have filed some 26,000 cases against several companies alleging various injuries and complications after having the mesh device implanted. The devices were meant to help with pelvic organ prolapse and bladder issues.

Those cases were consolidated under Goodwin in the federal court's West Virginia Southern District.

Cisson's case was selected as one of four representative cases that will enable the judge to better understand how to proceed with the bulk of the litigation.

In Wednesday's trial proceedings, Dr. Lennox Hoyte of the University of Southern Florida College of Medicine responded to a question from Huntington lawyer Paul Farrell Jr., one of the plaintiff's attorneys.

"What body of evidence exists in your opinion that supports your ideas sitting here today that Avaulta Plus armed mesh is a bad idea?" Farrell asked.

"Here is what I know," answered Hoyte. "I take a lot of these meshes out. I know that nobody implants them anymore, and I know that no one sells them anymore."

That comment drew an immediate objection from defense attorney Lori Cohen and Goodwin instructed the jury to disregard the answer.

Goodwin characterized Hoyte's statements as "spontaneous," and "not true."

When the jury was dismissed for lunch, Cohen made a motion for a mistrial. About two hours later, after conferring with attorneys, the witness and considering the issue, Goodwin announced a mistrial and sent the jurors home.

"I think it would have been very difficult for the jury to disregard it," the judge said, calling it a "bell that cannot be unrung."  He said an instruction to the jury not to consider that information would only draw more attention to it.

But it was clear the judge was unhappy with the outcome of the first mesh trial, which often included graphic descriptions of Cisson's medical problems.

"It's difficult enough to go through these proceedings once, much less twice," the judge said. "Nevertheless, there are rules we have to follow.

"Caution your witnesses even stronger than I'm sure you already did for our next trial," he told the attorneys. "I don't want to have two mistrials on the same case. I couldn't even imagine dealing psychologically with that. It would scar me for life." 

Contact writer Cheryl Caswell at or 304-348-4832.


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