Are Punitive Damages in Texas Punitive Enough?

In mid-September of this year, a jury in Texas awarded Martha Salazar $73 million dollars–including $50 million in punitive damages–after she brought a lawsuit against Boston Scientific, the company responsible for manufacturing the Obtryx transvaginal mesh sling. Salazar, who received the pelvic implant to clear up minor urinary leakage at the age of 38, can no longer sit, walk without limping, or exercise comfortably. She also had to undergo more than forty additional procedures, including four risky surgeries, in attempts to fix the damage that the Obtryx sling has caused to her body.

Salazar’s medical device/product liability case is one of the first involving pelvic mesh to reach a jury, but there are about 23,000 suits lined up behind hers, most of which are against Boston Scientific. This is a staggering number, but women have been complaining of problems with these medical devices for more than seven years, during which time Salazar’s attorney claims, “Boston Scientific failed to warn doctors and their patients of the serious complications associated with the Obtryx sling, even though the company was aware of the product’s problems.” He also argued at trial that the company “deliberately withheld from doctors a clinical study that proved serious complications resulted from the company’s mesh implant.”

While this large jury award was surely a relief to Salazar and her family, one that was sorely needed in response to her mounting medical bills, the trial judge did not let it stand. In 2003, Texas (as we explained in last week’s blog post) passed a sweeping tort reform package, one component of which places a cap on punitive damages. Since $50 million of Salazar’s award falls under that category, one that her attorney hoped “might change the way Boston Scientific does business” and “get the company’s attention,” the total amount awarded her by the jury in punitive damages was reduced from $50 million to about $11 million. In other words, her total award was struck down from $73 million to about $34 million.

As we discussed last week, punitive damages are meant to function as a deterrent for reckless behavior. Their purpose is to keep defendants from harming others and serve as a warning to others in the same industry that ruining the lives and bodies of consumers will not be tolerated. With Boston Scientific posting $1.87 billion in revenue in the third quarter of 2014 alone (according to Austin Kirk of AboutLawsuits.com), this raises a serious question about the effectiveness of such a punishment. Though $11 million is a serious amount of money to an individual, it’s a drop in the bucket to a company that took in $7.143 billion in 2013.

Government oversight of the pharmaceutical and medical device industries is understaffed and underfunded; often the only way to set companies straight is when individuals and their advocates take on corporations within the civil justice system.