A woman whose $1.2 million pelvic-mesh injury award was erased by an appeals court has asked the Texas Supreme Court to call off a final review, citing a settlement with device maker Johnson & Johnson.
Linda Batiste won $1.2 million in April 2014 over injuries allegedly caused by the TVT-O bladder sling. An appeals court overturned the trial award in November 2015 and Batiste quickly appealed to the Texas Supreme Court, where the case has been shelved ever since the two sides said last May that they’d reached a settlement in principle.
They asked the court Monday to dismiss the petition for review — despite still calling the deal an “agreement in principle.”
“The parties to this appeal have reached an agreement in principle to settle this case. Therefore, the parties file this joint request to dismiss the petition for review,” lawyers for Batiste and J&J said in the joint filing.
In the short motion, they also requested unspecified “general relief.”
TVT-O pelvic mesh is used to treat stress urinary incontinence. The Dallas appeals court had held in November 2015 that Batiste must show a link between an alleged defect — like the alleged propensity of the TVT-O’s heavyweight, small-pore mesh to erode — and her injuries, instead of just showing that injuries were caused by the device as a whole.
Representatives for the parties were not immediately available for comment.
Batiste had first requested that the state high court put the case on hold in May 2016, saying the parties had reached a settlement in principle but needed time to hammer out details and get them on paper. A status report from Jan. 31 of this year indicated that they’d made “significant progress” and asked for the last in a line of extensions.
Batiste had contended the appellate court wrongly required her to prove her injuries were caused by a specific defect, saying Texas courts are split on whether medical device cases are specifically exempt from a Texas product liability law that requires plaintiffs to isolate causation to a specific defect.
That’s a standard under which “it will be virtually impossible for any plaintiff to prevail on a product liability claim against a drug or device manufacturer in Texas,” Batiste had told the high court in her initial petition.
The Dallas appeals court said in November 2015 that while it’s undisputed that TVT-O can cause complications and it’s undisputed that Batiste suffered from those complications, the law of products liability doesn’t guarantee a product will be free of risk.
Batiste is represented by Tim Goss and Sara Turman-Vedral of Freese & Goss PLLC, Peter de la Cerda of Edwards & de la Cerda PLLC, Richard Capshaw of Capshaw & Associates, and David Matthews of Matthews and Associates.
Johnson & Johnson is represented by Stephen Brody and Charles Lifland of O’Melveny & Myers LLP and Scott Stolley of Cherry Petersen Landry Albert LLP.
The case is Batiste v. Johnson & Johnson et al., case number 15-0975, in the Supreme Court of Texas.
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