Calif. wins $344M mesh case, but $215M may not settle harmed gymnasts’ suit

The public’s health and safety sometimes find protections in the civil justice system and sometimes under regulators’ threat. Here’s hoping that whatever means are required, just and proper outcomes result.

For women, two separate suits have sought a modicum of justice for sexual abuse of talented young gymnasts by a predatory caregiver and damages tied to the maker of what has become a notorious material for supposed surgical repairs in the pelvic area.

For parents, the positive but potentially inconvenient recent news is that regulators finally have cracked down on risky baby sleepers, ordering the recall of tens of thousands more of them.

That these cases have dragged on for so long — and may do so for yet more time — no doubt is frustrating, angering, and raises further questions why remedial steps have not been taken sooner.


An offer looks sizable but may be lacking still

A $215-million settlement, proposed as part of the bankruptcy by USA Gymnastics, already has been denounced by lawyers representing more than 500 young women who say they were sexually abused by team doctor Larry Nassar.

The disgraced caregiver is serving a prison sentence of 40 to 175 years for sex crimes after he was convicted in a court trial that included dozens of his victims ripping him for the lifetime of suffering that he inflicted on them with his perverted, purported treatments. His abuses occurred over years, damaging talented athletes at Michigan State University and in the U.S. Olympic program.

MSU eventually settled with more than 300 Nassar victims for $500 million. But facing hundreds of lawsuits, USA Gymnastics declared bankruptcy to shield itself and to avoid decertification by its governing body, the U.S. Olympic and Paralympic Committee.

The gymnastics group insists that the $215 million is the maximum it can pay, because it lacks money and that sum will be covered by its insurers.

Nassar’s victims will require a lifetime of therapy — care that the proposed, average settlement per individual of $250,000 to $300,000 will not cover, their lawyers say, indicating that it is unlikely the gymnastics group will win over enough athletes, individually or collectively, so the cases will be resolved.

Instead, the women’s gymnastics organization will remain under a cloud of scandal, even as the 2020 Games in Tokyo near and occur.

A $344-million surgical mesh defeat for J&J

As for the state of California and the victims it sought redress for in a state court in San Diego, they, too, may have to wait for full justice. That’s because Johnson & Johnson, the defendant in yet another surgical mesh case, has said it will appeal a judge’s ruling for California, awarding $344 million in penalties after a nine-week bench trial.

mesh-150x150The judge, in an 88-page ruling, found J&J “marketed the benefits of its mesh products without fully and truthfully disclosing the accompanying risks and complications,” the Los Angeles Times reported, adding that he also ruled that the company’s marketing was likely to deceive doctors and consumers about the risks.

“Johnson & Johnson intentionally concealed the risks of its pelvic mesh implant devices,” Calif. Attorney General Xavier Becerra argued in a statement. “It robbed women and their doctors of their ability to make informed decisions about whether to permanently implant the products in patients’ bodies. Johnson & Johnson knew the danger of its mesh products but put profits ahead of the health of millions of women. Today we achieved justice for the women and families forever scarred by Johnson & Johnson’s dishonesty.”

The state AG also noted:

“The pelvic mesh products are permanent surgical implants designed to treat stress urinary incontinence and pelvic organ prolapse in women. The lawsuit alleged that Johnson & Johnson misrepresented the safety of these products by concealing and misleading consumers about the possibility of serious and irreversible complications caused by mesh, including permanent pain with intercourse, loss of sexual function, chronic pain, permanent urinary or defecatory dysfunction, and potentially devastating impact on overall quality of life.  From 2008 to 2014, Johnson & Johnson sold more than 470,000 pelvic mesh products nationally, including more than 30,000 in California. Worldwide, more than 2 million women have had these mesh products implanted in their bodies … Johnson & Johnson has faced over 35,000 personal injury lawsuits related to its pelvic mesh products. It has settled claims similar to those brought by [California] with the state of Washington for $9.9 million and with a coalition of 42 other states for $117 million.”

California’s suit against J&J, Becerra’s statement said, was launched three years ago and after years of various investigations showed significant harms caused by surgical mesh products. The makers insisted their products were safe and blamed misuse by others on reported problems. Those mounted as corrective surgeons, for example, described the internal mess that they confronted with mesh that had virtually melted into abdominal organs or that failed, allowing patients organs to rearrange themselves in the pelvis and abdomen.

The meshes became one of several unacceptable harms inflicted by the medical establishment, especially surgeons, on women patients.

Finally, major recall of risky sleepers for babies

As for the lethal sleepers, the devices became one of several flash points between critics and the U.S. Consumer Product Safety Commission, led until recently by a Republican appointed by President Trump. Critics accused the panel, which serves as one of the nation’s top watchdogs over the safety of an array of devices and products, of taking sides with businesses and industries over consumers.

gracosleeper-243x300Consumer Reports and the American Academy of Pediatrics assailed the CPSC for dragging its feet in regulating increasingly popular devices that claimed to rock babies to sleep. The devices proved problematic, however, because of the way they positioned dozing youngsters on a slant, leaving them vulnerable to compression of airways, suffocation, and death. Pediatricians say that research shows that babies younger than 1, as a precaution against suffocation, should sleep on their backs on a firm surface and without surrounding blankets, toys, bumpers or other stuff.

As Consumer Reports noted:

“[The latest] recall comes after a CR investigation uncovered dozens of infant deaths linked to infant inclined sleepers in April 2019. That ongoing investigation prompted the recall of 4.7 million Fisher-Price Rock ’n Play Sleepers, plus the recall of more 670,000 inclined sleepers made by Kids II71,000 inclined sleeper accessories sold with the Fisher-Price Ultra-Lite Day & Night Play Yards, and 24,000 Disney and Eddie Bauer rocking inclined sleepers made by Dorel. Overall, infant inclined sleepers have been linked to at least 73 reported infant fatalities and more than 1,000 incidents, including serious injuries.”

The consumer safety group reported this, too: “Consumers who have the sleepers should immediately stop using them and contact the individual companies for a refund or voucher.”

CR has posted resources for parents with next steps, as has the CPSC.

As CR noted:

“The recall involves about 111,000 Graco Little Lounger Rocking Seats (shown above); 3,100 Pillo Portable Nappers, made by Evenflo; 46,300 SwaddleMe By Your Bed Sleepers, made by Sumr Brands; and about 5,900 Delta Inclined Sleepers With Adjustable Feeding Position for Newborns; and including the four today, there have now been eight infant inclined sleeper recalls … There were no reported incidents or injuries associated with the products recalled today, according to the CPSC … Earlier this month, the CPSC warned consumers to avoid the SwaddleMe By Your Bed Sleeper after Sumr Brands (also called Summer Infant) initially refused to recall the product.”

That firm relented and recalled the product, joining other sleeper makers.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them by defective and dangerous products, especially with medical devices. The surgical meshes have come one of several unacceptable and injurious products or procedures with which the medical establishment, especially surgeons, mistreated women patients. The deadly sleepers — devices that still likely are in many households and will take time to get off markets, if that is possible — have become one of several instances where critics say watchdogs dozed while children suffered.

This is all unacceptable, as is the rising instances in which vulnerable young people — athletes and others, men and women — have been victimized for years by predatory medical personnel at a shameful and growing roster of prominent institutions: MSU, Penn State, Ohio State, UCLA, and the University of Southern California.

USC, which is struggling to resolve thousands of claims by women seeking hundreds of millions against the school and a gynecologist in its student health service, also just announced that one of its former men’s health doctors has surrendered his medical license. He told state officials he suffers from a progressive condition that prevents him from practice. But he also has been hit with dozens of suits, accusing him of sexual battery, harassment, and making demeaning remarks about his male student patients, especially those who are gay.

We’ve got a lot of work to do to safeguard the public, especially the health and well-being of women, young people, and babies.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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