Compensation for Defective Hernia Mesh Products

Severe infection, seromas, bowel obstruction, organ perforation, chronic pain, hernia recurrence, and adhesions are some life-changing injuries a hernia repair patient can experience if a defective mesh implant was used. Compensation has been made available to victims through many lawsuits. More lawsuits are filed each day. Compensation can be yours, too, if you have been injured following hernia repair surgery and defective mesh implants.

If you have had hernia repair surgery with a mesh product and suffered injuries, you likely have questions you want to be answered before deciding if filing a claim or lawsuit is right for you. At Shouse Law Group, we provide answers to common questions here.

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Compensation has been made available to victims of defective mesh products through many lawsuits.

1. Who is eligible to file a claim or lawsuit for compensatory damages due to hernia mesh-related injuries?

Hernia mesh lawsuits are determined primarily on the facts. Basic qualifiers include

  • You have had hernia repair surgery with a mesh implant in recent years.
  • The manufacturer owed you -- as a consumer and patient -- a duty and failed to adequately warn you of any problems associated with the product.
  • You experienced a complication or injury due to the defective mesh implant.
  • That injury was/is monetarily quantifiable.

Again, these are just the basic qualifiers. You will want to speak to an experienced personal injury lawyer to determine whether you qualify and what your options are.

2. What are compensatory damages?

Compensatory damages is an award of money to a plaintiff in a civil matter. Damages refer to the losses incurred by the plaintiff that are eligible for compensation. Compensation refers to the monetary value of those damages. Compensatory damages are awarded when the plaintiff has suffered due to the negligence or unlawful conduct of the defendant(s).

In order for the damages to be compensatory, the defendant's negligence or unlawful conduct must have been the cause of the monetarily quantifiable injuries.

Compensatory damages can be categorized according to:

  • Economic damages
  • Non-economic damages, or
  • Punitive damages.

Compensation is meant to address two matters: (1) compensating the victims and their families; and (2) preventing the same from happening again to someone else.

3. What compensation can you get for your hernia mesh-related injury?

Typically, if you suffered an injury due to a defective mesh implant, then you can expect compensation in both economic and non-economic damages. Punitive damages are different and vary according to the facts of the case and the state where you are filing the lawsuit. If you seek compensation, it is important to know what each type of damages involves.

3.1 What are economic damages?

Economic damages are your “out-of-pocket” expenses. In other words, economic damages are actual monetary losses you incur due to the defective product. These damages are readily quantifiable because you have evidence of the losses or the losses are readily estimated due to the evidence you do have. These damages include economic losses like

  • Current and future medical expenses
  • Past and current lost income, and
  • Future lost earning potential.

There are no caps to the amount of economic damages a plaintiff can receive for the injuries he or she sustained due to the fault of another person or entity, including the manufacturer of a faulty mesh product.

3.2 What are non-economic damages?

Non-economic damages are intangible economic losses where the exact amount is difficult to pinpoint and will entail many factors before a final amount is determined. Non-economic damages take into consideration the fact that a defective mesh product can have a serious and life-altering impact on the quality of your life. These damages can include:

  • Pain and suffering, which refers to physical pain from the injury, e.g., aches and pains, discomfort, scarring, and limitations on normal activity
  • Loss of consortium, which means one spouse is deprived of the love, affection, comfort and other normal family relationship due to his or her partner's injury
  • Loss of enjoyment, which means you no longer have the ability to participate in things you once enjoyed, like sports or hobbies)
  • Mental anguish, which refers to conditions like distress, insomnia, depression, anxiety, trauma, and
  • Permanent disabilities, impairment, or disfigurement.

Many states have caps on the amount of non-economic damages a plaintiff can receive in a personal injury case. For instance, in Rhode Island, where countless hernia mesh lawsuits have occurred, there are no caps on non-economic damages. In California, however, there is a cap of $250,000 for non-economic damages. 1

When there are caps, many of those states allow exceptions for serious injuries, like those injuries that can impact the organ system. Exceptions either mean the cap is increased or the cap is removed altogether. Again, it is according to each specific state.

3.3 What are punitive damages?

Punitive damages are not meant to compensate the victim for his or her injuries, but for prevention and punishment purposes. It is intended to prevent the same injury happening to another person while also punishing the responsible person or entity for the negligence or unlawful act.

A 2005 U.S. Supreme Court decision provided guidelines to control excessive punitive damage awards. 2 The amount of those awards, though, remain high. Some states imposed stricter laws to limit punitive damages or eliminated the opportunity altogether.

Having an experienced personal injury attorney review your case, he or she can identify the best jurisdiction to file your lawsuit to ensure you have the best chance at optimal compensation.

4. How is the amount of compensation calculated?

Compensation is calculated using different methods. Economic damages are generally calculated using the actual expenses (e.g., bills, invoices, receipts) and actual anticipated costs or loss of wages.

Non-economic damages, conversely, is a subjective process. Some attorneys may multiply economic damages by two or three, but that does not always provide an adequate amount for the damages suffered. Many factors must be taken into consideration, especially in hernia mesh cases because each case varies significantly according to the injury and the patient.

There are five basic factors that are considered in determining the value of your compensation: type of hernia mesh, level of injury, amount of medical bills, injuries impact on your life, and loss of wages.

4.1 What is the type of hernia mesh device used in your surgery?

There are two important factors to know here: (1) how it was taken off the market; and (2) studies on the product. Was the device recalled by the FDA or did the manufacturer voluntarily pull it off the market? Are there studies or adverse reports about the product and its link to causing complications and/or injuries?

4.2 What was the level of injuries you suffered?

Defective products can cause various injuries, from the inconvenient to the debilitating. The severity of the injury will be a critical factor in assessing the value of a claim. When treatment to address the complications is more extensive, compensation will reflect the same.

4.3 How did the injuries impact your life?

As to the quality of your life, how has your life changed due to the injury? Compensation awards are typically higher for persons whose injuries have had significant negative impacts on their day-to-day living, including their ability to work. If your injury caused long-term, chronic pain or have caused you to endure lifelong digestive problems, your compensation will be higher than someone who was injured but was able to recover fully.

4.4 Did you suffer any type of disability, impairment, or disfigurement?

If you suffered any type of disability, impairment, or disfigurement, then your compensation will be higher than someone else who did not. Not only does this affect your long-term ability to work and enjoy life, it is accompanied by physical, emotional, and mental complications. For these persons, life will never be the same and compensation must reflect that situation.

5. What damages have been awarded in previous lawsuits?

There have been thousands of lawsuits throughout the United States, some already settled and most others ongoing. In fact, almost every other day, a new lawsuit is filed.

One of the first hernia mesh lawsuits ended in settlement in 2011. C.R. Bard's Composix Kugel Mesh hernia patch was found to have caused serious medical complications. C.R. Bard paid out $184 million to settle 2,600 cases in the State of Rhode Island that were part of a multi district litigation case. 3 C.R. Bard continues to be tied up in extensive litigation over its various hernia mesh products. Plaintiffs were each provided around $67,000 each as part of the settlement.

Payouts, however, are expected to increase as the injuries emanating from defective mesh are turning out to be much more complicated and extensive than initially believed.

6. What is factored into hernia mesh lawsuit settlements?

In these types of lawsuits, the manufacturers are likely to settle after a great deal of negotiating and litigation. Whether you file a lawsuit alone or via a multi-district litigation (MDL) process, there is no way for an attorney to predict how much you may or may not be awarded via settlement for your own specific lawsuit. When thinking about your own lawsuit, compensation, and settlements, keep the following in mind:

  • Each case is unique and specific to the facts. If your injury is confirmed to have been caused by a mesh product, that injury will never be exactly like another person injured by the same mesh product. Each person who undergoes hernia repair surgery and who is subsequently injured by a defect implant experiences the complications differently according to his or her own body, health, and other circumstances.
  • These lawsuits are private. The manufacturers want don't want to draw too much attention to the negative aspect of their products. They want to settle your lawsuit quietly. Thus, it is difficult to compare compensation and settlement amounts unless it is made public one way or another. But even then, knowing what someone else received for the same defective mesh product does not provide you much insight into what you may receive from your own lawsuit.
  • Prior publicized lawsuit settlements may not provide you with insight into what you could recover in damages, but they do highlight the importance of filing a lawsuit so that you can recover compensation.
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7. What should you do if you believe you are owed compensation for your hernia mesh injury?

New cases are filed on a regular basis. Compensation is being provided to those who need it. But you have to make the first move and consult with an attorney if you believe you are the victim of a defective mesh product. Timing is important. Not only is there a limit to how long you can wait to file once you discovered the defective mesh product, your personal injury attorney will need time review, investigate, and prepare. Don't wait, and don't try to deal with your pain and suffering on your own, get the legal help you need. Contact Shouse Law Group today at (855) 396-0370 or by filling out our online form.

Resources

  1. California Civil Code, §§ 3333 - 3343.7.
  2. State Farm Mutual Automobile Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003).
  3. Shrestha, Bibeka. Bard Offers $184M to Settle Hernia Patch Suits. Law 360.

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