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Exclusion of Alternative Causation Theories A Must in Texas Product Actions

by Deborah E Lewis

The Court of Appeals for the Fifth District of Texas' recent opinion in Johnson & Johnson v. Batiste is just another example of the import Texas higher courts place on a plaintiff's obligation to rule out alternative causes of personal injuries allegedly caused by a product.  Certainly in the context of implantable medical devices, Batiste provides a "teachable moment" to counsel of the critical need to spend extra time gathering and understanding a patient's complete medical and surgical history.  In such a thorough review of this information often lies the evidence that makes or breaks a product liability case.  

Most agree that many factors influence a patient's response to medical and surgical treatment, including familial history and genetics, other maladies and current or prior treatment, compliance with a physician's orders, etc.  With a surgically implanted medical device, additional risks may exist either from the insertion of the device itself during the surgical procedure or the fact there is now a foreign object within the body to which the body may react.  These are some of the facts that came to light in Batiste.  

Plaintiff Batiste, with a complex medical and surgical history, including a history of nine abdominal surgeries, sued Johnson & Johnson and Ethicon, Inc. for injuries allegedly sustained following the surgical insertion of a TVT-Obturator ("TVT-O") medical device to treat stress urinary incontinence.  Plaintiff alleged injury from the device's tape made of polypropylene mesh, which tape goes through the vaginal wall, through an opening of the hip bone, and out to the inner thighs.  She attributed her groin, pelvic, vaginal and urethral pain to the TVT-O.  Before jury deliberations, Plaintiff non-suited her manufacturing and negligence claims against Johnson & Johnson and Ethicon, leaving only design and marketing defect theories.  Plaintiff contended that the TVT-O's design defect lay in its:  1) heavyweight mesh and small pores, 2) mechanical cut, rather than laser cut, mesh causing the mesh to curl, fray and rope, and 3) mesh degradation and loss of particles.  Id. at *3.  

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