SAN JOSE — With a jury weighing its alleged liability, Intuitive Surgical settled litigation Wednesday brought by a Placer County housewife who blamed severe internal injuries suffered during a hysterectomy seven years ago on an early generation of the Sunnyvale-based company’s robotic arms.
Terms of the settlement with Michelle Zarick, who sought $10 million, were confidential. Judge Mark H. Pierce dismissed the Santa Clara County Superior Court jury Wednesday morning before the panel reached a verdict. Outside the courtroom, jurors said that seven of them were leaning in favor of Intuitive, but that the situation was still “fluid.” In civil trials, only nine jurors must agree on a verdict.
Intuitive denied liability, contending that Zarick came down with a massive infection after ignoring her surgeon’s advice to avoid having sex while her sutures were still healing. Zarick also acknowledged during her testimony that she got into a physical fight with her husband two days before being rushed to the hospital for emergency surgery to repair the damage inflicted by the infection.
Zarick’s case was the second to go to trial out of more than 20 pending lawsuits against Intuitive, alleging injuries tied to its da Vinci robotic system, which was used in more than 600,000 operations worldwide last year.
In June 2014, a Washington state jury found Intuitive wasn’t negligent in its training of a doctor who performed robot-assisted prostate surgery on a patient who later died. But Zarick’s case was considered more risky for the company because the Washington patient was morbidly obese, and she was a healthy 37-year-old at the time she underwent the surgery in 2009.
The trial in downtown San Jose was only the second in Santa Clara County to be live-streamed by Courtroom View Network on the web, where it was available to watch for a fee. CVN, co-founded by US Supreme Court Justice Stephen Breyer’s son Michael Breyer, has streamed about 50 civil trials in California in the past 15 years, including this case and litigation against the maker of asbestos-lined brakes in Alameda County last year. But in Santa Clara County, only one other trial has been live-streamed: a 2008 trade-secrets case involving the drug company, Pfizer.
Intuitive still faces a shareholder suit filed in federal court in San Jose, alleging that management and the board of directors were aware of problems with the robotic arms and tried to hide the extent of the issues from the FDA. The company, which took a $77 million pre-tax charge in 2014 to reflect the estimated costs of resolving the product liability claims, denies the allegations.
Zarick and her attorneys, Mark Geragos, of Los Angeles, and Dr. Francois Bladeau, of Alabama, sought more than $10 million in damages for physical suffering, mental distress and economic losses.
On Wednesday, Geragos said “I can’t say how much” the case settled for, but added, “I was grinning ear to ear.”
Geragos told jurors that Intuitive knew it had a problem with the robotic arms in 2007, devoted resources to fixing it by 2008, and finally told users about it in October 2011. In a tiny fraction of cases (less than half of 1 percent), the insulation covering the “wrists” of the robotic arms could crack, allowing electricity to shoot out and burn the patient.
“This is about holding Intuitive accountable for making a business decision that did harm people,” Geragos said. “Shame on them.”
However, the company has since improved the insulation, eradicating the problem and making the robot “much, much safer today,” Bladeau said.
Geragos’ argument held sway with the foreman of the jury.
“My thing was, we needed to hold a money-driven corporation accountable,” he said.
But one of the six women on the jury said the cause of Zarick’s infection was unclear.
“I didn’t think there was enough evidence to prove she was burned,” the woman said.
The company declined to comment on how many patients out of the more than half a million in the United States who underwent surgery with the first generation of its “da Vinci” robotic system filed lawsuits. Geragos said the company at one point faced about 3,000 suits, but many were settled or dropped. Geragos still represents patients in 22 pending cases.
The company’s lawyer, Palo Alto-based Allen Ruby, argued that the evidence showed that Zarick’s post-operative check-up was fine, and that she later developed an acute infection because of the intercourse and the fight.
The company issued a written statement Wednesday, defending the robotic arms.
“Intuitive Surgical presented strong scientific evidence in support of our case at trial. The Company stands behind our products and the work our employees do to advance high-quality minimally invasive surgery.”
Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.