Preview Newsletter
Ethicon Media Monitoring 3/4/2019
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The Sunday Post View: Do the right thing, Health Secretary, fly in surgeon to help mesh victims
Mar 4, 2019 | The Sunday Post
By Editorial
Trying to protect and improve Scotland’s health is a thankless, torturous job. The road ahead for the NHS is fogged and treacherous while a pivotal national conversation about how our health services can possibly cope with an increasingly ageing population, ever faster medical advances and a shortage of community care is forever postponed. -
This is a national scandal… it demands a national response: Mesh victims urge ministers to fly in leading US surgeon
Mar 4, 2019 | The Sunday Post
By Marion Scott
Irish mesh campaigner Mary McLaughlin will meet Holyrood politicians before a parliamentary debate on Tuesday to describe her “miraculous recovery” after her mesh was removed by surgeon Dionysios Veronikis. -
Cambs Times journalist Kath Sansom praised in the House of Lords for Sling the Mesh campaign
Mar 1, 2019 | Cambs Times
By Clare Butler
Sling the Mesh, which has campaigned for the suspension of mesh implants that have left women in excruciating pain, was discussed in the Safety of Medicines and Medical Devices debate yesterday (February 28). -
Dr Max the Mind Doctor: The lesson that could save so many young lives - and believe me, I should know
Mar 2, 2019 | Daily Mail
By Max Pemberton
...Sohier Elneil, a consultant gynaecologist and last year’s winner of the Daily Mail Health Hero award, fought a long battle for women who had suffered the pain and trauma of vaginal mesh surgery. -
Doctors, Lawyers with Monetary Motives Cause Painful Decisions in Women’s Health Care
Mar 2, 2019 | Black Press USA
By Glenn Ellis
Women, especially women of color and poor women, tend to suffer disproportionately in our healthcare system. The problem is growing worse now that there’s a group of trial lawyers eager to exploit female victims, under the guise of offering help. -
A Defense Attorney's Guide To Successfully Arguing Damages
Mar 1, 2019 | Law 360
By Robert Tyson Jr.
...These include a $68 million jury verdict for pelvic mesh, $247 million for a defective hip implant, $289 million for weed killer, and the list goes on and on.
Client Attorney Privileged/Attorney Work Product/At Request of Counsel
Online Sources
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The Sunday Post View: Do the right thing, Health Secretary, fly in surgeon to help mesh victims
Mar 4, 2019 | The Sunday Post
By Editorial
Trying to protect and improve Scotland’s health is a thankless, torturous job. The road ahead for the NHS is fogged and treacherous while a pivotal national conversation about how our health services can possibly cope with an increasingly ageing population, ever faster medical advances and a shortage of community care is forever postponed.
While the big picture, strategic stuff seems intractable, the grind of effectively responding to everyday NHS crises must be a grisly, gruelling business.
From bullying in the Highlands to financial black holes in Tayside, from deadly infections in Glasgow to missed targets all over the place, it lands on the desk of Health Secretary Jeane Freeman. It is a rotten job, a job that has all but finished the careers of predecessors defeated by the relentless barrage of bad news and looming emergency.
So far, however, Ms Freeman has made a fist of it. She appears capable, professional, and straightforward with a willingness to get involved when her involvement will bring an urgency and focus to executives caught like rabbits in the headlights of whatever crisis is hurtling towards them. She was quick, for example, to get in front of the recent problems at Queen Elizabeth University Hospital in Glasgow when she was visible, clear in her opinion, and quick to demand the work necessary to reassure staff and patients where the management had, through silence and evasion, managed to provoke alarm instead.
Given all that, it would be disappointing if Ms Freeman does not invite American surgeon Dionysios Veronikis to Scotland to help ease the agony of mesh victims.
There will, no doubt, be red tape and all sorts of objections from the medical establishment. The same establishment, of course, that let these women down so badly in the first place; that gave no warning these “minor procedures” could inflict life-changing injuries; that told them they were just unlucky, rare victims of a safe procedure; that, campaigners believe, whitewashed a Scottish Government review; that, in its arrogance, effectively ignored what was meant to be a ban on mesh procedures.
These women, supported by the fearless, tireless reporting of our own Marion Scott, have been let down by doctors, by officials, and by previous ministers. MSP Neil Findlay is right when he says this is now a national scandal, demanding a national response.
We are no experts but the women whose lives have been blighted by mesh are. If they believe Dr Veronikis coming to Scotland for a working trip, using and teaching his innovative, acclaimed techniques, unknown in Scotland, could help them then Ms Freeman should listen. Then book his ticket.
The crown might hang heavy but there are times when the Health Secretary can lighten the load by doing the right thing for the right reasons. This is one of them.
https://www.sundaypost.com/fp/the-sunday-post-view-do-the-right-thing-health-secretary-fly-in-surgeon-to-help-mesh-victims/
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Mar 4, 2019 | The Sunday Post
By Marion Scott
Irish mesh campaigner Mary McLaughlin will meet Holyrood politicians before a parliamentary debate on Tuesday to describe her “miraculous recovery” after her mesh was removed by surgeon Dionysios Veronikis.
Health Secretary Jeane Freeman is under mounting pressure to pay for the surgeon, who has pioneered techniques to improve mesh removal, to come to Scotland for a month and operate on women left in agony by the implants.
Victim Lorna Farrell from Eaglesham will also speak to MSPs to explain how attempts by surgeons in Scotland to remove her mesh has left her in a wheelchair.
Law lecturer Mary, 55, from Belfast, said: “MSPs can judge for themselves the difference between what Scottish women are currently being offered, and what can be done if the government would agree to Dr Veronikis coming here to operate on the most complex cases and train surgeons in his technique.”
MSP Neil Findlay will lead the parliamentary debate, challenging government claims that surgeons here can do “full removal”.
He said: “From everything I’ve seen and heard from mesh victims, I have yet to see any evidence surgeons here can do what Dr Veronikis is doing.
“I’ve seen letters from Scotland’s most experienced mesh surgeons saying they can’t completely remove the particular kind of implant most used here. Dr Veronikis has filmed himself doing exactly that.
“We have a responsibility to ensure mesh-injured women get the very best treatment available.
“The last thing they want is to be sent to the very surgeons who put the mesh inside them or who have caused more damage trying to take it out.”
Mr Findlay, who has cross-party support, said: “Accepting help from Dr Veronikis would go part of the way to recovering the credibility we once had in standing against what is now recognised as the biggest medical disaster of modern times. Offering the right medical help to victims of this scandal shouldn’t be about surgeons who don’t want to accept they can’t safely or completely remove mesh.”
He said the Health Secretary must take control instead of “shrugging off responsibility” by leaving individual health boards to handle the crisis.
He said: “This is a national crisis, it demands a national response.”
Chris Harding, chairman of the British Association of Urogynaecologists, has praised the work of Dr Veronikis who offered to come to Scotland to treat women using his unique technique.
The Greece-born specialist, awarded the Distinguished Surgeon Award by the US Society of Gynaecologists last year, said: “I’ve spent years developing specialist skills and techniques. I’m not looking to make money out of this situation, all I want is to help as many women as possible.”
Mesh campaigners say thousands of Scottish women are suffering the effects of plastic mesh implants, used to treat bladder problems and pelvic organ prolapse.
Almost 600 are taking legal action.
The Scottish Government said: “Full mesh removal has already been provided by specialist staff working here in Scotland.
“While Health Boards are directly responsible for surgical staff and their development, we would be happy to discuss with both Boards and professionals funding of additional education and training.”
Former radio presenter Lorna Farrell, 53, from Eaglesham, claims the attempted removal of her mesh implant left her in a wheelchair.
She said: “I was crippled with pain after getting the implant. But when surgeons supposedly removed it, there was so much more pain I’ve been stuck in a wheelchair.
“Our specialists admitted they can’t fully remove the type of mesh implants most used in Scotland. Along with increased pain, I’m still left with mesh inside me.”
Claire Daisley, 49, from Greenock, is now not only in a wheelchair after removal surgery, she is waiting to have both her bowel and bladder removed because of mesh.
She said: “Mesh removal by specialists left in even more pain. In a few weeks I’m having my bowel and bladder removed because of mesh.
“We later discovered mesh implants weren’t even thoroughly tested on humans, and the NHS were using them to ‘save’ £200 per patient, destroying our lives in the process.
“The very least the government can do now is get the man who has had the most resounding success in removing mesh to come to Scotland and help us.”
Mary McLaughlin will travel to Edinburgh from Ireland to tell politicians of her experiences, along with Scottish Mesh Survivors.
She said: “On Christmas Day I was in so much pain I couldn’t even sit and eat with my family.
“In January, I flew to the US and spent £15,000 of my savings to get my mesh removed safely in one piece, because nobody in the UK could offer proper full removal, only partial.
“On January 14, Dr Veronikis removed every bit of mesh and showed me pictures to prove it.”
The operation turned her life around.
She said: “I’d been virtually bedridden for three years and I’d had to give up my job.
“Two months post-op, I’m getting my life back and feel so much better I can fly to Scotland to show politicians what a lifeline they can give mesh victims.
“I’m proof they can see. It would be criminal if they didn’t take up the doctor’s kind offer to help.”
https://www.sundaypost.com/fp/this-is-a-national-scandal-it-demands-a-national-response-mesh-victims-urge-ministers-to-fly-in-leading-us-surgeon/
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Cambs Times journalist Kath Sansom praised in the House of Lords for Sling the Mesh campaign
Mar 1, 2019 | Cambs Times
By Clare Butler
Sling the Mesh, which has campaigned for the suspension of mesh implants that have left women in excruciating pain, was discussed in the Safety of Medicines and Medical Devices debate yesterday (February 28).
The debate took note of the steps being taken to improve the safety of medicines and medical devices.
Lord O’Shaughnessy, parliamentary under secretary of state at the department of health, praised Kath for “highlighting the human costs” of mesh procedures.
Speaking in the House of Lords, he said: “I also very clearly remember meeting a large group of women whose lives had been ruined by mesh.
“Some were confined to wheelchairs and all had suffered or were suffering considerable pain as a result of what they had been told at the time was a minor and uncomplicated procedure: the insertion of synthetic mesh.
“I had several further meetings with affected women and parliamentary campaigners on this issue, and I take this opportunity to thank Kath Sansom and the Sling the Mesh campaign for highlighting the human costs of some of these mesh procedures and for working constructively to change the policy and the regulatory environment to reduce the risks to women.”
Kath, who has worked at the Cambs Times for more than 10 years, has campaigned ferociously for women who were left in chronic pain after being given mesh implants to treat organ prolapse and urinary incontinence.
In July last year the Government accepted a recommendation to temporarily ban vaginal mesh implants for women with urinary incontinence.
It followed The Independent Medicines and Medical Devices Safety Review, chaired by Baroness Julia Cumberlege.
Lord Hunt of King’s Heath, also name-checked Kath in the House of Lords for her “excellent campaign”.
He said: “The noble Lord has focused on the review of the noble Baroness, Lady Cumberlege.
“I will concentrate on surgical mesh, but I recognise that the review has a much wider significance, assessing the actions of relevant authorities over the years when safety concerns have been raised.
“On surgical mesh, what is so striking is how long it has taken to get any action.
“The excellent campaign group Sling the Mesh, led by Kath Sansom, has fought a sustained campaign to draw attention to the problems that we have heard about, with many women left in permanent pain, unable to walk or work and feeling totally neglected by the National Health Service.”
Kath launched Sling the Mesh in 2015 following her own painful experience, and has since gone on to see the Cambs Times win the Making a Difference award for the best local newspaper campaign.
Highlights of her campaign include a lobby of the Houses of Parliament in July 2017, when MPs who heard harrowing stories of how surgical mesh has changed women’s lives beyond recognition.
Speaking about the House of Lords debate yesterday, Kath said: “Feeling incredibly proud right now following a three hour debate in the House of Lords in which my name and Sling The Mesh was mentioned throughout for determination in ensuring the government tightens up regulations and scrutiny of patient safety.”
Hundreds of people took to social media to congratulate Kath for her hardwork.
https://www.cambstimes.co.uk/news/kath-sansom-praised-in-house-of-lords-1-5913884
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Mar 2, 2019 | Daily Mail
By Max Pemberton
From an early age I knew I was gay, but it wasn’t until I was 14 that the enormity of this struck me. And I was horrified.
I wanted to feel ‘normal’; to grow up and have the same family life as my parents, the same prospects and hopes as my friends. Every evening after school, I’d lock myself in the bathroom and cry.
After doing this for six months, I realised that crying hadn’t changed anything. So I decided that I had two options: I could either kill myself or accept I was gay and get on with my life.
I chose the latter.
A few years later, someone at my school, a Catholic convent, did kill himself because he was gay and couldn’t cope. I understood how he must have felt.
Homosexuality was never discussed by the nuns and teachers — it was as though gay men and women didn’t exist. In fact, the page discussing same-sex attraction in a biology textbook in the school library had been removed, as though simply reading about it might corrupt us.
For those who have never struggled with their sexuality, it is hard to understand how lonely this feels.
Later, when I started working in A&E, and despite far greater tolerance than when I was a teenager, I was shocked at the number of youngsters I saw who had either tried to kill themselves or self-harmed because they were unable to come to terms with their sexuality.
The tragedy of it all, the misery they and their families endured, is something I will never forget.
Given my personal history, you will understand why I was delighted to read comments made by Amanda Spielman, the head of Ofsted, this week.
She said that all children should learn about LGBT (lesbian, gay, bi-sexual, trans) issues at school, and about gay family life; that some people can have two mothers or two fathers.
It follows protests by Muslim and Christian parents at a school in Birmingham who have objected to their children being taught about same-sex relationships and homophobia as part of the Relationship and Sex Education (RSE) classes.
I would normally defend to the hilt the right of parents to have a say on what their children are taught at school, but on this issue I stand firm. We are facing a mental health crisis, and fear and confusion over their sexuality is a trigger for some young people.
Studies show that more than half of all students subjected to homophobic bullying say they have thought about suicide, and about 20 per cent have actively attempted it.
Gay youngsters are three times more likely to have made a serious attempt on their lives than teenagers generally. The gay rights group Stonewall reports that two-thirds of gay pupils experience homophobic bullying, rising to 75 per cent in faith schools. For their sake, it is imperative that this is discussed.
This doesn’t mean talking about the mechanics of sex to young children, as critics fear. It’s about acknowledging that some people are gay, and that it’s OK.
For those coming to terms with their feelings, this can make all the difference. I certainly wish such discussions had been part of the curriculum at my school. It would have prevented a lot of anguish.
We must work to create an environment in the home and at schools and colleges where gay teenagers feel understood and accepted, and work to build a society where homophobia is as taboo as racism is now.
I also believe that it is the children of parents who protest vociferously about teaching LGBT issues who will benefit most from class discussions. Some of them will be gay whether Mum and Dad like it or not, and because of strict religious beliefs these children are likely to feel even more isolated.
It is our duty to help youngsters during this time, and the best way to do that is to ensure all children are presented with information about same-sex attraction in a non-judgmental way.
Just as fundamentalist Christians who don’t believe in evolution cannot influence the biology curriculum to fit in with their views, so parents of religious persuasions who don’t approve of homosexuality cannot be allowed to influence what their children are taught.
In 21st-century Britain, we must not tolerate intolerance.
The NHS needs its medical mavericks
Professor Richard Lacey, the world-renowned microbiologist who first warned the world about the human risks of BSE — ‘mad cow disease’ — has died.
As I read his obituary this week, I marvelled at his bravery. He was ridiculed, vilified and lost his job after refusing to be silenced about the possibility that BSE could be transmitted to humans. He was, however, ultimately vindicated.
The history of medicine is full of noble men and women like him who spoke out regardless of the consequences.
Barry Marshall, an Australian doctor, discovered the link between a bacterial infection and stomach ulcers. He, too, was laughed at and resorted to drastic measures to prove his point. He drank a vile concoction containing the bacteria (Helicobacter pylori) and developed an ulcer to prove he was right.
Now, prompt antibiotic treatment has made ulcers a rarity.
Sohier Elneil, a consultant gynaecologist and last year’s winner of the Daily Mail Health Hero award, fought a long battle for women who had suffered the pain and trauma of vaginal mesh surgery.
Miss Elneil was shunned and attacked by some colleagues for making a stand but ultimately was proved right.
My worry is that younger doctors have been so indoctrinated by a ‘tick-box’ culture in the NHS that there are fewer mavericks or independent thinkers — and that is a loss to us all.
How the elderly can stay in their home
I recently visited an elderly relative who has Alzheimer’s and is now quite impaired.
To be honest, I was astonished that she wasn’t already in a care home given that she’d been found wandering the streets on several occasions — but that visit was a revelation.
Carers come in three times a day, but her family are also making use of the latest digital technology to keep her in her much-loved home with some degree of independence.
For example, every time she approached the front door, a sensor would activate a device and a recording of her son saying, ‘Mum, don’t leave the house unless you’re with someone else’ or, ‘Mum, you’ve opened the door, please go back inside the house’.
If the door was left open too long, a neighbour would be automatically alerted.
It also played recordings of her son reminding her to make a cup of tea or to go to bed. And because it was her son’s voice, she listened to it. It’s exactly the sort of technical innovation that’s needed.
Power of listening
Opposition to childhood vaccines is growing, and the views of the ‘anti-vaxxers’ has taken hold, according to alarming research carried out by Queen Mary University of London.
I think this is, at least in part, the fault of doctors. We’ve arrogantly dismissed the genuine fears of people who worry about the vaccination of their children, bombarding them with statistics instead.
Professor Heidi Larson at the London School of Hygiene and Tropical Medicine — and head of its Vaccine Confidence Project — says that listening to people’s concerns without interruption, and talking them through, does bear fruit. Doctors need to heed her advice: we need to listen more and lecture less.
https://www.dailymail.co.uk/news/article-6762821/DR-MAX-MIND-DOCTOR-lesson-save-young-lives.html
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Doctors, Lawyers with Monetary Motives Cause Painful Decisions in Women’s Health Care
Mar 2, 2019 | Black Press USA
By Glenn Ellis
Women, especially women of color and poor women, tend to suffer disproportionately in our healthcare system. The problem is growing worse now that there’s a group of trial lawyers eager to exploit female victims, under the guise of offering help.
Take for instance that roughly one-quarter of U.S. women suffer from pelvic floor disorders, and according to the Washington Post, about 3-4 million of them have been treated with transvaginal mesh. The vast majority of these women receive repairs using transvaginal mesh without complications, but a significant minority experienced serious problems.
After the publicity surrounding this issue hit the fan, the lawyers pounced. It has come to light that a collaboration involving some law firms, doctors, and finance companies are pressuring women into unnecessary surgeries to remove the mesh. Giving new meaning to the term “insult to injury,” this phenomenon, according to the New York Times, is leading unsuspecting women to the operating table – even in cases when the removal could worsen the symptoms.
If that’s not enough, some unscrupulous hedge funds are financing companies connected with law firms specializing in suing manufacturers of the mesh. These law firms often use overseas telemarketing callers in countries such as India and the Philippines to contact women, known to have had the mesh surgery, with offers to join in lawsuits to sue the mesh manufacturers.
The New York Times highlighted a growing problem that tends to target women: the industry grown out of medical device settlements. For example, a court-ordered, charitable fund, the Common Benefit Trust, established out of the Dow Corning breast implant settlement fund, which also resulted from a faulty medical device. The Common Benefit Trust appears to have used some of this money to fund policy centers, advocacy groups, and a conference on litigation.
Pelvic organ prolapse, a medical issue sought to be treated by the transvaginal mesh, is one of the most common reasons for women to have surgery. It is ranked among the top three reasons that women have hysterectomies.
Then there are racial disparities. Compared with African-American women, Latina and White women had four to five times higher risk of symptomatic prolapse, thought to be in large part due to the lower rates of African-American women reporting the condition as a problem to doctors. Researchers see this pattern as part of a culture where African-American and/or poor women will not typically see the condition as a problem requiring them to consider surgery.
Issues like the transvaginal mesh that has revealed disparate treatment of women are not new. All patients – but especially women patients and minority patients that have traditionally been marginalized – deserve better than to be exploited in some of their most vulnerable times.
Those vulnerable times include childbirth and other areas of maternal health. Dr. Niva Lubin-Johnson, president of the National Medical Association, which represents more than 50,000 African-American physicians on issues of health disparities and justice, says, “There is a crisis for African-American women that is related to maternal mortality – and that’s across any economic level and educational level for African-American women. We are losing in that area,” she says.
As for the transvaginal mesh, Lubin-Johnson says women must take extreme precaution when contacted by anyone about removals of that or any other device. “No, you go talk to your own physician about that and not to someone who is doing a cold call because of some possibility of joining a law suit…Talk to your own physician first; even if they were not the one who put the mesh in.”
Since The New York Times began shining a light on these bad behaviors, federal prosecutors from the Eastern District of New York have begun investigating the allegations of unnecessary and unneeded vaginal mesh removal surgeries. According to reports, doctors, lawyers, financiers and others who may have been involved in the sham have been subpoenaed.
So, if you’re considering medical treatment, be an informed consumer. Be sure to have your health care provider explain all of your options, as well as their possible risks and benefits. Though if these risks are not avoided, by all means, beware of financial lures to have surgeries that you do not need and that could leave you in a condition far worse than before.
Glenn Ellis is a Research Bioethics Fellow at Harvard Medical School, and a health columnist and radio commentator who lectures, nationally and internationally on health-related topics. He is also the author of “Which Doctor?” and “Information is the Best Medicine.”
https://www.blackpressusa.com/doctors-lawyers-with-monetary-motives-cause-painful-decisions-in-womens-health-care/
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A Defense Attorney's Guide To Successfully Arguing Damages
Mar 1, 2019 | Law 360
By Robert Tyson Jr.
With more and more nuclear verdicts being awarded at trial — especially in products liability cases — can the defense afford not to argue damages with a jury? It may be unconventional, but something has to be done to turn the tide of runaway jury verdicts sweeping the nation.
It is a long-held belief that if a company wants a defense verdict in a products liability case, the defense better not give the jury a damages number, or even argue damages. As explained herein, this belief is wrong. The defense can argue damages to a jury, even give a defense number, and still obtain a defense verdict.
Giving the jury a defense number early and often, even while arguing for no liability, can still result in a defense verdict. Given the tens, and hundreds of millions of dollars at stake in many bellwether trials and multidistrict litigation cases, the question really is: Can corporate defendants afford not to argue damages?
The Problem
In the last year alone, dozens of corporations have shelled out hundreds of millions of dollars in damages after unsuccessful attempts to defend their products in court. These include a $68 million jury verdict for pelvic mesh, $247 million for a defective hip implant, $289 million for weed killer, and the list goes on and on. Most recently, Johnson & Johnson was hit with a products liability verdict of $4.7 billion after a civil jury found its talc powder caused ovarian cancer in nearly two dozen women, making it one of the largest personal injury awards to date.
The problem is real. And it is bigger than just the bellwether cases that make it to trial. The ramifications of large jury verdicts on hundreds of other cases to follow can be just as devastating — if not more so — to a company. Of course, a company wants a defense verdict for its product. But if the jury disagrees and finds liability, the jury typically only has one astronomical number to consider when it comes to awarding damages — a number sponsored by a plaintiffs lawyer.
It should be obvious that a corporate defendant would prefer an adverse verdict of $2 million rather than being forced to pay $30, $50 or $100+ million. Especially if the defense offered more than $2 million before the bellwether trial and when there are potentially tens, or hundreds or thousands of cases stacked up behind it.
What if the defense could take this approach and still obtain a defense verdict?
The Solution
As a corporate defendant, you must hedge your bets. You must limit your company’s risk. If your product is found to be defective, you may not be able to afford a jury verdict for the plaintiff's massive damages number. You definitely may not be able to afford the tens or hundreds of products cases that are sure to follow it.
So what do you do? Well, you definitely have to do more! You have to address and argue damages with the jury at trial.
The traditional defense approach is no longer effective. The plaintiffs bar has evolved tremendously over the last decade. Use of the so-called reptile theory and other psychological studies have led to novel and creative trial strategies by plaintiffs counsel. Conversely, there has been no innovative response from the defense. Nothing. The defense bar continues to defend cases the way it has always done: fight liability at all cost and hope the jury never gets to damages.
The defense must try something new. In response to the plaintiffs bar’s evolving tactics, the defense must be creative, too. One way to avoid runaway jury verdicts is to argue damages, even when going for a defense verdict. Here is how you do it.
First: Always Give a Defense Number
Most jurors never walk into a courtroom thinking anything is worth $20 million or more. Even only “decent” plaintiffs attorneys know that asking for a large verdict from the beginning of trial can get them big results. It is almost unheard of for a jury to award a large verdict without hearing a proposed dollar amount from plaintiffs counsel. But, after hearing plaintiffs counsel talk about a huge number in voir dire, and then for the next few weeks of trial and closing argument, that astronomical number becomes more reasonable to jurors by the time deliberation begins. Especially if the plaintiff's damages number is the only number they have heard during the trial.
Moreover, inflated verdicts do not always demonstrate the intent of the jury. Juries will sometimes award half of what the plaintiff is seeking and believe a defendant will be happy with the result. However, 50 percent of a $25 million, $50 million or $100 million request is still a significant jury award.
With this in mind, it is imperative that defense counsel combat the plaintiffs' damages request at trial with a number of their own. Give your number to the jury early, give it often, and never increase it.
You Can Still Obtain A Defense Verdict
This strategy may initially seem counterintuitive. If you want a defense verdict from a jury, why give them a number? How can you get a defense verdict if you are arguing damages? Surely asking for both a defense verdict and a dollar amount would be confusing to a jury or be a sign of weakness, right? Wrong.
First of all, the defense is already arguing damages! In just about every products liability trial, the defense is also disputing the extent of injuries from the product, the reasonableness of the medical care, and the need for any future care. The jury is hearing from defense experts about damages in almost every case. Since you are already disputing damages when you are requesting a defense verdict, is that confusing to a jury? In fact, why have any medical experts at all if you are seeking a defense verdict? Are you sending the jury a mixed message if you really believe your product was safe by hiring numerous expert witnesses and conducting independent medical examinations?
More importantly, if you are already calling experts to dispute the plaintiff's claims of medical treatment and injuries, why not go one step further and show the jury what a reasonable dollar amount is for these claims? Sponsoring a defense damages number at trial is no more confusing to a jury who knows you are fighting for a defense verdict over the course of a monthlong products liability trial, than spending a week of that time putting on medical experts to refute the plaintiff’s medical damages.
Also, studies have shown it is not a concession of liability in the jury’s eyes when the defense sponsors a damages number at trial.[1] The jury knows you want a defense verdict, regardless of whether you fight damages or give a number. Giving a defense number is neither confusing to a jury nor a sign of weakness.
Why Give a Number?
The psychology behind giving a number is fairly simple. Jurors are conditioned by arguments and evidence repeated throughout trial, and, over time, jurors grow comfortable with a number — no matter how outrageous it may seem when first introduced. Plaintiffs counsel is very familiar with this concept, known as priming.[2] The most skilled plaintiffs attorneys use priming, repeating their large numbers over the course of multiweek or monthslong trials, to influence attention and memory.
This concept of priming is not a “plaintiff’s” psychological term. A plaintiffs lawyer did not invent priming. It comes from the study of human behavior, not plaintiffs' behavior. So priming works for the defense too! Giving a number works just as well for the defense as it does for plaintiffs. It is critical to give the jury a counter-anchor,[3] another number to consider — early and often. The examples of runaway juries finding a product to be defective, and then only having the plaintiff’s outrageous number to consider, are numerous. Priming works and is a tool that must be used by anyone in the business of evaluating risk. Hedge your bets, or you may be betting the company!
How Do You Give a Number?
The defense must give a damages number when first picking a jury, in opening and closing, and with witnesses throughout the trial. Explain at the outset that although you believe there is no reason for the jury to ever get to the point of determining damages, it is your duty to address all the issues and evidence presented in trial.
The jury will be instructed as to the applicable law for damages and will receive questions about damages on the special verdict form. While you believe the evidence supports a defense verdict and jurors will never need to consider damages, if for some reason they do address damages, the evidence will show a fair and reasonable award is the defense number you have proposed. The jury will understand you are requesting a defense verdict and they will not interpret giving a number as weakness.
Second: Argue Noneconomic Damages!
The largest component of most runaway jury verdicts is often noneconomic damages, or “pain and suffering.” This is the great unknown. How does one assign a value to a human life, a disfigurement, a leg or a back?
No one questions why a seriously incapacitated plaintiff receives an award for millions of dollars for future medical care — someone who is seriously injured should have their medical needs covered. However, it is alarming when plaintiffs are awarded tens of millions of dollars for pain and suffering that seem out of proportion to their physical injuries and necessary treatment. This is a runaway jury verdict.
Again, you are already arguing damages in most products liability trials. You are disputing the extent of the plaintiff’s injuries, whether they needed the claimed medical treatment, and whether they will need future treatment. Why not also argue the biggest component of most catastrophic injury cases? Argue the value of a leg, or a brain or a life. Do not leave the biggest component of your case to plaintiffs attorney and the jury!
How Do You Argue Pain and Suffering?
The typical defense approach in a runaway jury verdict is to ignore pain and suffering. When a defense attorney does argue noneconomic damages, he or she typically tells a jury to follow the law and that the damages should be fair and reasonable. This is not an argument.
So how should the defense argue noneconomic damages in a products liability case? That could be another article entirely, but here are two methods to start:
First, the defense must discuss with the jury the impact of the accident on the plaintiff’s life — what is the plaintiff’s life really like after the accident?
Second, the defense must argue to the jury the impact of money on the plaintiff’s life — what is the value of money to the plaintiff? Defense counsel must show the jury how the plaintiff’s life will be made whole by the defense number recommended for pain and suffering.
If the defense uses these two methods, a jury will have a clear path to returning a just and reasonable verdict, if they even get to damages.
In Conclusion
The traditional defense approach is no longer working. As plaintiffs’ arguments constantly evolve, so too must the defense arguments in order to beat them. Companies who challenge their defense counsel to give a number and argue pain and suffering, even when going for a defense verdict, will significantly minimize the risk of a runaway jury verdict. In light of the runaway jury verdicts in products liability trials in just the last year, the question really is: Can you afford not to argue damages?https://www.law360.com/articles/1133149/a-defense-attorney-s-guide-to-successfully-arguing-damages
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