In December, 2005 a hernia mesh victim Ms. Hamblen went to Dr. John Manubay at Pine Brook Medical Center in Brooksville, Florida to get her incisional hernia repaired. UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION BARBARA HAMBLEN and HERBERT HAMBLEN, Plaintiffs v. DAVOL, INC. and C.R. BARD, INC., Defendants. ORDER
Large Circle Bard Composix Kugel Hernia Patch
The Florida surgeon implanted a Large Circle Bard Composix Kugel Hernia Patch. Ms. Hamblen acting by and through her hernia mesh law firm asserted that the , “may malfunction after being implanted; the rigid plastic ring may break; in response to body forces the Bard CK Patch may distort, buckle, or warp; it was not properly manufactured; [it] was defectively designed; [and its] components could cause a chronic inflammatory response.” Id.
Avid readers of this hernia mesh lawsuit blog are well aware of Bard’s checkered past of manufacturing allegedly defective and unreasonably dangerous hernia mesh. Bard’s greatest hits include: Visilex Composix Composix EX Spermatex Bard 3D Max hernia mesh Sepramesh Perfix Plug Ventralex hernia mesh Kugel Composix Kugel Ventrio Ventrio ST Marlex Sepramesh IP Composite Ventralex ST.
Years of severe abdominal pain
As a result of the CK hernia patch, Ms. Hamblen allegedly suffered through years of “severe abdominal pain” and suffering. She visited numerous medical doctors to seek relief and help as a result of the severe abdominal pain. She asked these medicals doctors for treatment and to find the cause of her pain abdominal pain. Apparently, medical doctors from Florida who she visited refused to link Ms. Hamblen’s severe and excruciating pain to the Bard Large Circle Composix Hernia patch she had implanted in 2005.
Ms. Hamblen was not willing to play nice in the sandbox with C.R. Bard Inc and Davol Inc. She alleged that Bard / Davol committed misrepresentation and fraud. Bard’s hernia mesh law firm was less then pleased, to say the least about these nefarious allegations. Bard’s hernia mesh lawyer sought to quash the fraud and misrepresentation allegations with a motion to dismiss.
Will Ms. Hamblen obtain a hernia mesh settlement 2018? Will Ms. Hamblen get justice and hold Bard/ Davol accountable? Please continue to check back to this surgical mesh blog for hernia mesh lawsuit updates.
A ‘white knight’ emerged by the name of Dr. Marc Polecritti
Finally a ‘white knight’ emerged by the name of Dr. Marc Polecritti. Dr. Polecretti determined that Ms. Hamblen’s abdominal pain was caused by the Bard Composix Kugel Hernia Patch. Dr. Polecritti removed the mesh from Ms. Hamblen’s abdomen in an operation that occurred on July 10, 2013. Her doctor opines that “to a reasonable degree of medical probability, that the memory recoil ring in Ms. Hamblen’s Bard CK Patch was fractured and this break was a contributing cause of the injuries suffered by Ms. Hamblen.” In January 2007, C.R. Bard and Davol Inc recalled the Large Circle Bard Composix Kugel Hernia Patch.
A hernia mesh lawsuit
The gravamen of Ms. Hamblen’s surgical mesh lawsuit allegations were premised on:
- “negligence (count 1), strict liability – design and/or manufacturing defect (count 2), failure to warn (count 3), negligent misrepresentation (count 4), fraud – fraudulent misrepresentation and fraudulent nondisclosure (count 5), and loss of consortium (count 6).” Id.
- “Plaintiffs claim that Defendants omitted information about the “risks, dangers, and disadvantages” of the product, and “marketed, advertised, promoted, sold and distributed” the product “as safe,” when in fact, Defendants “knew or should have know” that the product “was not safe.” Id.
C.R. Bard and Davol Inc sought to dismiss the following counts of the victim’ mesh lawsuit: “(count 4), fraud – fraudulent misrepresentation and fraudulent nondisclosure (count 5).” Id. Many mesh manufacturers are afraid to go to a jury trial on the merits. As a result, their high powered mesh law firms seek to dismiss the mesh lawsuit on technical grounds such as a state statute of limitations or an obscure federal rule of civil procedure.
Misrepresentations and fraudulent allegations agaisnt Bard / Davol
Ms. Hamblen is going for the jugular against Bard / Davol and is clearly in it to win it. Ms. Hamblen’s hernia mesh lawyers assert that C. R. Bard and Davol Inc. concealed that that the CK patch was defective and unsafe. The mesh victim’s law firm alleged that Bard / Davol should have informed the public of the dangers of the Bard CK Patch. Ms. Hamblen alleged that Bard knew the CK Patch rings failed with other mesh victims. She also alleged that Bard knew that the statements Bard was making were false. Now is the time for Bard / Davol to open up the proverbial pocket book and enter into a hernia mesh settlement 2018 with Ms. Hamblen. If Bard / Davol will not reach a surgical mesh settlement 2018 with Ms. Hamblen then it appears she intends to play hardball and convince a jury to find Bard civilly responsible for fraud / misrepresentation.
A civil Jury determination of fraud or misrepresentation would probably not phase Bard / Davol executives. This is considering that in 1993, Bard plead guilty to 391 felonies resulting from Bard’s manufacturing and marketing of Heart Catheters. Three Bard executives were convicted of felonies and sentenced to 18 months in the big house.
Allegations of misrepresentation against Bard:
- “Plaintiffs set the tone for their fraud claim against Defendants by alleging: “Defendants fraudulently presented Ms. Hamblen, her
physicians, and the general public that the Bard CK Patch was a safe and effective hernia repair product and concealed the
dangerous and defective elements identified herein of the Bard CK Patch.” Id.
- “Defendants did not timely or adequately apprise the public and physicians of the defects or dangers inherent in the Bard CK Patch, including the Bard CK Patch implanted in Ms. Hamblen, despite Defendants’ knowledge that the hernia repair products had failed due to the defects described herein” Id.
- “Following the market introduction of the Bard CK Patches, including the Bard CK Patch implanted in Ms. Hamblen, Defendants began to receive actual notice of failures of the plastic ring; rings were breaking. Defendants actively and intentionally concealed this notice of the defective and dangerous condition from the public, Ms. Hamblen, her physicians and the FDA.” Id.
- “Plaintiffs allege that Defendants made false statements regarding the Patch being safe and effective. Plaintiffs also claim that
Defendants knew that the statements were false and were aware that the Patch was unsafe and unfit for its intended purpose.” Id.
- “Plaintiffs contend that the misrepresentations were made to Mrs. Hamblen, doctors, and others to induce them to choose the
Patch for hernia repair. And, after Mrs. Hamblen chose the Patch, its implantation caused her to suffer various injuries. The lengthy Complaint sets forth sufficiently detailed allegations to support the fraud claim.” Id.
Florida Federal Court denies Bard’s motion to dismiss
Thankfully, the Hernia mesh lawsuit can proceed to a likely hernia mesh lawsuit jury trial. Ms. Hamblen will get her day in Court and hopefully will get the justice that she deserves. She hopes to hold Bard accountable for their actions.