JEFFERSON CITY, Mo. (Legal Newsline) - A woman who sued the manufacturers of her pelvic-mesh implants isn’t entitled to a new trial over the fact she wasn’t allowed to tell jurors about one company’s prior criminal conviction, the Missouri Supreme Court ruled Oct. 13.
The decision also ruled out a mistrial over a brief PowerPoint reference to her prior settlement of lawsuits claiming she was actually the victim of medical malpractice.
Eve Sherrer sued the hospital and medical practice responsible for repeated surgeries she said left her injured and settled her malpractice claims in 2014. But before settling, she added Boston Scientific Corp. and C.R. Bard to her lawsuit, claiming their pelvic-mesh devices were defective.
The case went to trial in 2015 and in early 2016, the jury ruled for the defendants. Sherrer appealed, saying the trial judge refused to allow her to present evidence of Bard’s 1994 criminal conviction for mail fraud, conspiracy and failure to file medical reports in relation to sales of cardiac catheters.
She also complained the court allowed the defendants to show the jury her original complaint against her doctors, suggesting they were to blame for her injuries, not Bard and Boston Scientific. And her lawyers moved for mistrial immediately after the defendants flashed the PowerPoint slide referring to her settlement, which defense lawyers said was a mistake and took down immediately.
The Missouri Supreme Court, in a 5-3 decision, rejected all of her arguments, although it acknowledged it was improper for the trial court to allow defense lawyers to repeatedly mention the malpractice suits the plaintiff had settled. The decision strengthened Missouri rules against allowing a plaintiff’s prior claims to be used to contradict allegations against the defendant at trial.
On the issue of criminal past, however, the court gave the defense a solid win. Sherrer’s lawyers said they had a right to present evidence of Bard’s prior criminal convictions to counter defense statements referring to the company’s “good corporate character.” They cited a statute originally passed in 1895 that allowed convicted felons to testify in civil cases under the condition their criminal history could be used to impeach their credibility.
While corporations and individuals share many legal attributes, the Missouri high court ruled, they aren’t identical. The law allowing evidence of criminal convictions doesn’t apply to corporations because they are artificial constructs that don’t have the capacity to testify about things they witnessed first-hand, the court ruled.
Sherrer’s lawyers also said Bard’s lead defense lawyer opened the door to questions about the company’s character when she told jurors Bard complied with Food and Drug Administration regulations, tested its Align mesh for safety, and its products helped “enhance the quality of life” for patients.
“Evidence of Bard’s prior convictions does not contradict any of the assertions stated in Bard’s opening statement,” the court ruled, however. “The convictions are evidence of Bard’s misconduct in the 1980s related to heart catheter devices manufactured by a division that Bard sold years before the Align was brought to market.”
While reiterating and strengthening the rule against using a plaintiff’s inconsistent pleadings as evidence against them, the court declined to reverse the judgment because her lawyers failed to object during the trial. The court also declined to reverse because Bard briefly showed a PowerPoint slide that referred to Sherrer’s settlements. The slide wasn’t entered into evidence and it isn’t clear the jurors even saw the box referring to the settlement since it was one of 19 boxes in a crowded slide that the judge ordered taken down almost immediately, the court ruled.
In a partial dissent joined by two other judges, Justice Patricia Breckenridge said mistrial should have been granted.
“The defense’s strategy invited the jurors to conclude Ms. Sherrer’s claims against BSC and Bard were meritless afterthoughts,” the judge wrote.
The Connecticut Supreme Court earlier this year similarly declined to reverse a defense verdict in a pelvic-mesh case in which the plaintiff argued she should have been allowed to present medical journal articles that urged doctors to tell their patients the implants were still considered experimental. The articles were deemed inadmissible hearsay because the surgeon said he never read them.