Mark Geragos and the Closing Rebuttal Before Intuitive Settles $30M Claim Over Its Surgical Robot

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In a $30 million trial against Intuitive Surgical Inc. over injuries a woman suffered during a hysterectomy aided by the company’s da Vinci robotic equipment, Mark Geragos’ colorful closing rebuttal set up a settlement with the medical device giant by using the company’s own marketing to argue it peddled an unnecessary, potentially dangerous, surgical system.

Michelle Zarick claims Intuitive’s da Vinci surgical robot caused a vaginal dehiscience, or incision separation, and ultimately injured her bowel. 

During closing rebuttal in a case in which Zarick’s legal team requested $30 million in damages, Geragos pointed out that, for years preceding Zarick’s procedure, hysterectomies represented a fraction of the procedures in which the da Vinci device was used. Then, “They decided they were going to create another market for their surgical system, and that other market was going to be on women,” Geragos said. “That’s great if it’s going to be everything it was touted to be.”

But Geragos argued the company’s claims in its marketing materials and elsewhere did not match up with the truth. Geragos reminded jurors of brochures the company published over the years promising women could get back to activity “faster” than with traditional methods, and that average recovery could take 4.5 weeks. That claim, Geragos pointed out was undercut by defense witness testimony noting that it generally took about 8 weeks to recover from the procedure.

“The doctor who [the defense] just took to breakfast and paid to come down here and stay at the hotel… [the defense] put so much information into her head, I mean she couldn’t figure it out: ‘Wait? Am I saying 8 weeks? Do I say 4.5?’ Geragos said, mimicking a confused witness. “You could see the wheels turning, she didn’t know what was going on.

“And the reason is because the whole thing is totally illogical. Because the 2011 [brochure] is still using the scam of 4.5 weeks [recovery].”

Geragos said that  inaccurate claim was important. “This was a supposed cure for a problem that didn’t exist,” Geragos said. “This was a company that decided they were going to prey on women now, and they were going to create a need for this surgery.”

Geragos argued that, more than simply creating a need, anecdotal evidence showed the device actually caused more problems like those Zarick suffered. Geragos reminded jurors of testimony a physician had performed about 200 hysterectomies with a single vaginal dehiscience before using da Vinci, while in da Vinci-aided procedures she had experienced 3 such incidents.

Geragos quipped that the defense witness became confused as to whether those 3 incidents came within 20 or 200 da Vinci procedures. “Whatever the hell was going on with her, I don’t know, but the fact is there was never a problem [before].”

I know that I’m making fun,” Geragos added, “but it’s no joking matter. You’re taking women’s health and introducing a robot into the equation, and you’re having exactly, by the way, exactly what happened to [Zarick].”

Intuitive settled with Zarick before the jury reached a verdict.

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