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Ethicon 8/27
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Boston Scientific Wants Plaintiff's Murder Plea In Mesh Trial
Aug 26, 2015 | Law360
By Sindhu Sundar
Boston Scientific Corp. told a North Carolina federal court Tuesday it should be allowed to reference a pelvic mesh plaintiff's past conviction for the murder of her husband and subsequent eight-year prison term in her upcoming trial, saying it is relevant to fighting her claims that the device affected her mental health. -
U.S. business groups call for probe of medical funding industry
Aug 26, 2015 | Business Insider (Reuters)
By Alison Frankel and Jessica Dye
Two business lobbying groups this week called on the Consumer Financial Protection Board to investigate the medical funding industry after a Reuters investigation revealed that private investors are funding operations for women who have sued makers of surgical implants.
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Boston Scientific Wants Plaintiff's Murder Plea In Mesh Trial
Aug 26, 2015 | Law360
By Sindhu Sundar
Boston Scientific Corp. told a North Carolina federal court Tuesday it should be allowed to reference a pelvic mesh plaintiff's past conviction for the murder of her husband and subsequent eight-year prison term in her upcoming trial, saying it is relevant to fighting her claims that the device affected her mental health.
In a response to plaintiff Ramona Winebarger's motion to exclude evidence about her criminal record, Boston Scientific argued that it should be allowed to introduce Winebarger's guilty plea in 1995 to murdering her first husband Harmon Dennis Young because he'd allegedly started an affair.
The Massachusetts-based device maker, which was hit with a $100 million verdict by a state jury in Delaware in May over its transvaginal mesh products, argued that it was not trying to bring up her murder conviction to bias a jury about her character. It said Winebarger had claimed to have suffered "mental anguish" because of its Uphold mesh device she was implanted with 2010 but that her criminal history could indicate that her mental heath issues predate her mesh surgery.
"Mrs. Winebarger’s emotional history — which is necessarily intertwined with her criminal record — is directly relevant to her claimed damages," Boston Scientific said in its filing Tuesday.
"Moreover, this evidence is also relevant to Mr. Winebarger’s claim for loss of consortium," it added, referring to her present husband. "Boston Scientific does not seek to impeach Mrs. Winebarger’s character for truthfulness — but rather to rebut her claim for damages."
Boston Scientific argued that Winebarger has made claims for loss of enjoyment and emotional distress because of being implanted with the device but that her medical records show that she had already been diagnosed with major depressive disorder and post-traumatic stress disorder, among other things.
Winebarger has argued that her actions were a response to a "domestic violence situation," but Boston Scientific said that characterization contradicts her earlier accounts of planning her first husband's murder.
"No doubt, Mrs. Winebarger and her first husband had a tumultuous and abusive relationship," Boston Scientific said in its filing. "However, the claim that her convictions 'stemmed from a domestic violence situation' is a mischaracterization at best."
Attorneys for Winebarger could not immediately be reached for comment Wednesday.
Winerbarger's complaint, filed in 2013, was part of the consolidated litigation before U.S. Judge Joseph Goodwin in West Virigina federal court until he transferred it to North Carolina in April. Her suit targets Boston Scientific's Uphold Vaginal Support System, which it marketed as a thinner and lighter alternative to typical synthetic mesh devices.
Winebarger is represented by Sean Patrick Tracey, Shawn P. Fox and Clint Casperson of the Tracey & Fox Law Firm and John R. Fabry and Mark R. Mueller of Mueller Law PLLC.
Boston Scientific is represented by Leslie C. Packer of Ellis & Winters LLP.
The case is Winebarger et al. v. Boston Scientific Corp., case number 5:15-cv-00057, in the U.S. District Court for the Western District of North Carolina. -
U.S. business groups call for probe of medical funding industry
Aug 26, 2015 | Business Insider (Reuters)
By Alison Frankel and Jessica Dye
Two business lobbying groups this week called on the Consumer Financial Protection Board to investigate the medical funding industry after a Reuters investigation revealed that private investors are funding operations for women who have sued makers of surgical implants.
The American Tort Reform Association and DRI—The Voice of the Defense Bar told Reuters on Tuesday that medical funders take advantage of the people they claim to be helping.
The U.S. Chamber of Commerce, another proponent of business-friendly tort reform, said in a statement Tuesday that medical funding is “a blatant abuse of the system” that leaves “actual victims with little or no recovery.”
As Reuters reported, medical funders profit by purchasing bills for the medical treatment of injured plaintiffs at a deep discount from health care providers, then claiming the full amount of the bill as a lien against the patient’s legal recovery through a settlement or verdict.
At least several hundred women in the sweeping litigation against manufacturers of so-called pelvic mesh, used to treat incontinence and other conditions, relied on medical funders to pay for surgery to remove their implants. Liens by funders in mesh cases, Reuters found, can spiral to as much as 10 times what health insurers would pay for the same procedures.
“This is predatory lending – exactly what the CFPB was designed to prevent,” said DRI president John Sweeney in an interview.
A spokeswoman for the CFPB, a federal agency established to combat financial industry abuses, declined to comment.
Medical lender Daniel Christensen of Austin-based MedStar Funding said in an email that industry participants are subject to certain state commercial or lending laws. He said patients’ attorneys also provide oversight.
“I am not in favor of regulation,” said Christensen, whose medical funding network was described in the Reuters investigation. “I am in favor of a person’s right to contract. If they want to take a settlement advance or if they want to obtain medical care on a lien, they should have the right to do so without the government telling them otherwise.”
Christensen said funders earn high rates of return because “litigation finance is an extremely risky endeavor.”
It is disingenuous, he said, for business groups such as the U.S. Chamber to express concern for plaintiffs. The groups oppose his industry “not because they suddenly developed a sense of altruism, but because eliminating litigation funding is in the best interests of those who fund them – big business and insurance.”
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