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Judgment for mesh implant makers upheld after woman’s death

January 23, 2019

The estate of a woman who died after a surgical mesh patch was implanted in her body will not be able to proceed with a lawsuit against the patch’s manufacturer and patent holder after the 7th Circuit Court of Appels upheld summary judgment for the defendants Tuesday.

The estate of Georgia Bowersock, represented by Charlotte Robinson and Bobby Don Bowersock, sued C.R. Bard, Inc. and Davol Inc. after Bowersock died in October 2006. In July 2005, a surgical mesh patch designed to treat hernias was implanted in Bowersock’s abdominal area, though Bard and Davol — which manufacture the patch and own its patent, respectively — recalled the product the following December.

In early October 2006, Bowersock went to the emergency room with abdominal-wall abscess, and after returning to the ER a second time and later experiencing a heart attack, she died at the end of the month. Her cause of death was determined to be pneumonia, but in the lawsuit against Bard and Davol, Bowersock’s estate alleged the patch was defective and had caused her death.

The estate retained three experts for its case. First, they hired Dr. Stephen Ferzoco, who presented the novel theory that the memory ring within the patch, which enables the patch to adhere to the abdominal wall, had buckled, “rub[ed] up against the bowel” causing a break, then “seal[ed] up prior to explanation or discovery of the mesh in the bowel.” The plaintiffs also presented Dr. William Hyman, who admitted that he never examined or viewed Bowersock’s patch, and the coroner.

The district court, however, granted the defendants’ motion to exclude all three experts, finding Ferzoco’s theory failed to meet Evidence Rule 702’s reliability threshold, Hyman was not qualified to opine on medical causation, and the coroner was not timely disclosed as a witness. The Southern District Court then entered summary judgment for Bard and Davol, and the estate appealed.

The 7th Circuit ultimately agreed with the district court’s decision to exclude the expert testimony, focusing its review on Ferzoco’s testimony. Judge Diane Sykes, writing for the unanimous panel, said the lower court properly applied the Daubert framework to exclude Ferzoco’s theory, noting the theory had not been peer reviewed and was not supported by Bowersock’s medical records or the records of other patients.

Sykes further rejected the estate’s “differential diagnosis” argument, finding they did not raise that argument at summary judgment. And even if preserved, the argument would fail on the merits, Sykes said, because Ferzoco did not establish his theory as being sufficiently reliable.

“In sum, the plaintiffs cannot prove medical causation without Dr. Ferzoco’s testimony,” Sykes concluded. “The record reflects that the judge properly applied the Daubert framework and soundly exercised his discretion to exclude it. It follows that Bard was entitled to summary judgment.”

The case is Charlotte Robinson and Bobby Don Bowersock as co-personal representatives of the Estate of Georgia J. Bowersock, deceased, and Mark Bowersock, individually v. Davol Inc. and C.R. Bard, Inc., 17-2068.

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