Plaintiffs Must Prove Existence of Proposed Safer Alternative Design, W. Va. Federal Judge Rules

CHARLESTON, W. Va. — The plaintiffs in an Ethicon transvaginal mesh action must prove that a proposed safer alternative design would have reduced their specific injuries, a West Virginia federal judge has ruled, citing to the state high court’s recent adoption of a jury instruction requiring as such.

On Dec. 9, Judge Joseph R. Goodwin of the U.S. District Court for the Southern District of West Virginia explained that while the jury instruction is not binding precedent, the persuasive force behind it in aiding him to predict how the West Virginia Supreme Court would rule on the issue is substantial.