In Tina Burris v. Ethicon Inc. et al., Case No. 3:20-cv-01450, the U.S. District Court for the Northern District of Ohio denied plaintiff’s motion for a new trial based upon some evidentiary errors. In sum, the trial court ruled that the plaintiff was not prejudiced by defendants’ reference to a monograph during the testimony of the plaintiff’s implanting surgeon, which concerned potential risks and complications.
There, Tina Burris underwent implantation of an Ethicon Prolift pelvic mesh device in August 2008. She later suffered complications. In her suit, Burris asserted that she suffered various physical injuries from the product and that Defendants failed to adequately warn of the risks of those injuries. Although the jury found that the risks of the Prolift device which plaintiff claimed caused her injuries were not a matter of common knowledge among physicians who perform pelvic floor surgery, it also determined that the Prolift was not defective in its warnings. The jury therefore found in favor of Defendants.
Plaintiff sought a new trial on the grounds that the admission of a defense exhibit identified as “the Gynecare Surgeon’s Resource Monograph” was so prejudicial that it warranted a new trial. The Monograph contains, information regarding potential risks and complications of the Prolift product and it was referenced during the testimony of Plaintiff’s implanting physician, Dr. Desrene Brown. Dr. Brown testified she received training on the Prolift in April 2008 and she did not recall having seen the Monograph before. The Monograph was later introduced into evidence through defense experts Dr. Larry Sirls and further discussed by Dr. Salil Khandwala. Plaintiff cited unfair prejudice in its motion, claiming that the Monograph was not properly disclosed in pre-trial discovery, but did not object at trial.
Finding that the Monograph was indeed disclosed, the court stated: “Plaintiff cannot argue there was any unfair surprise in the use of the Monograph at trial based on a failure to disclose the document, much less that failing to grant a new trial on this basis ‘would result in a gross injustice.'” Plaintiff also challenged the foundation under which the exhibit was admitted. Again, the court determined that this was harmless error. “The Court finds that the Monograph could have been admitted through Dr. Khandwala’s testimony. Thus, even if Dr. Sirls’s testimony did not provide the proper foundation for admission of the Monograph, any such error was harmless.”
Thus, “there was no error in the admission of the Monograph, and (2) even if there was error, it was not so prejudicial that refusal to grant a new trial is ‘inconsistent with substantial justice ? would have caused a different outcome at trial.'”