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Linda Gross Prolift Case Survives Appeal by J&J

Linda Gross in NJ trial, Feb 2013

Linda Gross in NJ trial, Feb 2013

Mesh News Desk, March 29, 2016 ~ An appeal by Johnson & Johnson in the $11.1 million Linda Gross Prolift mesh case was decided in favor of Ms. Gross by a three judge appellate panel from New Jersey this morning.

Prolift on eBay July 2013

Prolift on eBay July 2013

Judges Fisher, Espinosa and Rothstadt of the Superior Court of New Jersey Appellate Division ( Doc. A-0011-14T2), decided to allow to stand the $3.35 million in compensatory damages and $7.76 in punitive damages decided by an Atlantic City, New Jersey in February 2013.

Linda Gross, a nurse from South Dakota had been implanted with the Prolift, the largest of the polypropylene pelvic meshes made by Ethicon, a division of Johnson & Johnson. Prolift has since been quietly removed from the market.

Upon the jury award, J&J immediately filed an appeal.  “The punitive damage award is unsupported by the evidence presented at trial,” said a J&J spokesperson to Bloomberg News at the time of the verdict. “Ethicon acted appropriately in the research, development and marketing of the Prolift.”

Upon hearing the jury verdict, a lawyer for Ethicon, Christy Jones said:

Christy Jones, Feb 2013

Christy Jones, Feb 2013

“I understand that you have found that we could have done a better job and that we in fact fell short,” Jones said Feb. 26.

“My clients understand that. We hear you, I promise you….while I confess to you from the bottom of my heart that it hurts, and we’re disappointed in the verdict, we nonetheless appreciate what you have said and recognize and respect your verdict.”

Jurors found in favor of Linda Gross on her claim that J&J failed to provide adequate warning to the implanting surgeon, Dr. Kevin Benson, fraudulent misrepresentation to Ms. Gross, and loss of consortium, however the jury did not find the Prolift Pelvic Floor Repair System was defectively designed.

J&J filed a motion for a new trial. On July 15, 2014, that was denied.

See the appellate decision here.

THE APPEAL

J&J argued trial judge Carol Higbee made an error when she failed to apply the learned intermediary doctrine to the fraudulent misrepresentation or deceit claim. The learned intermediary is the doctor, in this case Dr. Benson, who is the only person required to receive warnings about the product from the company. Ethicon argued it should not be held liable because it is the doctors’ responsibility to inform his patient.

“[T]he learned intermediary doctrine does not eliminate a factfinder’s need to consider whether the patient’s decision would have been different if the warning had been sufficiently thorough,” the judges said.

“The learned intermediary doctrine imposes a duty on a manufacturer to warn physicians of the risks involved with its product, thereby placing the physician in the role of intermediary between the manufacturer and the patient,” the judges said.

Linda Gross has said she would not have agreed to the surgery had she been properly informed by her doctor.  She has endured 20 surgeries both for removal and repair.  The lack of a full informed consent was the proximate cause of her injuries, the judges decided.  Ethicon understood the potential dangers of its pelvic mesh implants and failed to pass those along to the doctors.

J&J also argued that the causation evidence was insufficient to prove a failure to warn. Judge Carol Higbee also  erred when she made erroneous evidence rulings and allowed the jury to consider punitive damages, said J&J in its appeal.

Adam Slater, Feb. 2013

Adam Slater, Feb. 2013

“This decision is very good primer on learned intermediary,” says trial attorney Adam Slater to Mesh News Desk.

“Only if there is adequate warning given to Linda Gross can she have true informed consent.

“If the warning was not adequate, if she didn’t have true informed consent, the learned intermediary drops out of the case.

This is critical.”

Slater says the Bottom Line – A decision to have a pelvic mesh device permanently implanted in your body is that person’s decision.

“They put the power back in the hands of women not to the doctor to decide what happens to a woman’s body.”  

Slater adds the defense has been winning a lot of arguments in court against that principle, based on the learned intermediary doctrine and this ruling will change the landscape for all pelvic mesh litigation.

 

WHAT’S NEXT?

Johnson & Johnson has 20 days to  Petition the New Jersey Supreme Court to ask it to hear the Gross v. Ethicon case. Generally that is only granted if there are conflicting lower court rulings that must be sorted out by the high court of a state.

In this case, Slater says the respected New Jersey Appellate panel took care to carefully detail the case.  A decision on whether the New Jersey Supreme Court will or will not hear it could be made by summer.

If the Gross cases is rejected by the NJ Supreme Court, J&J will have to pay $11.1 million. That would make it only the second time a plaintiff has received a jury award after the defendant company ran out of appeal options. That case was the $5.5 million pelvic mesh trial of Christine Scott in her case against C.R. Bard.  #

 

LEARN MORE:

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION, March 29, 2016
http://mskf.net/wp-content/uploads/2016/03/Gross.pdf

Bloomberg News, J&J Owes $7.76 Million in Punitives in Vaginal Mesh Case, February 28, 2013 
http://www.bloomberg.com/news/articles/2013-02-28/j-j-owes-7-76-million-in-punitives-in-vaginal-mesh-case

Mesh News Desk, Feb 24, 2016, First Bellwether Pelvic Mesh- Linda Gross Case Goes before NJ Appeals Court
http://www.meshmedicaldevicenewsdesk.com/first-bellwether-linda-gross-case-goes-before-nj-appeals-court/

Mesh News Desk, Feb. 28, 2013, Day 31: Linda Gross v. Ethicon It’s Over! $11.1 Million
http://meshmedicaldevicenewsdesk.com/day-31-linda-gross-v-ethicon-its-over-11-1-million

Mesh News Desk, July 17, 2014, NJ Judge Upholds $11 million Linda Gross Award- Ethicon Announces Another Appeal
http://meshmedicaldevicenewsdesk.com/nj-judge-grants-11-million-linda-gross-award-ethicon-announces-another-appeal

Mazie Slater, Testimony of Ethicon Witnesses that Resulted in Verdicts
http://meshcomplications.com/

Adam Slater, Mazie Slater, portion of closing argument in Gross trial, Feb. 2013, Atlantic City, NJ
http://mskf.net/wp-content/uploads/videos/mesh/finals/Mazie-3-Adams-Punitive-Closing-FINAL.mp4

 

29 Comments

  1. Anonymous says:

    Praise God! Good for you Linda!! When will the rest of us get our days in court is what I’m wondering how long will it be held up by Judge Goodwin? I’m so very happy for you Linda!!!

  2. stopmeshimplants says:

    Very happy for Linda Gross and her legal team. This is a huge victory for all mesh harmed individuals!

  3. anna says:

    You waited so long, God bless you, and your family. It doesn’t bring you back what you lost physically, but a least you showed them who is the victim here.

  4. Finally says:

    Praise the Lord!! Let’s keep praying that the rest of us get our day!!

  5. K says:

    Adam Slater ROCKS!!! Congratulations Linda!! J&J this has been hell on all of us! Why keep fighting we are struggling and you need to stop and make this right!!!

  6. Bonnie says:

    I’m so happy she has won J&J can’t get away with this just because they think they’re gods & hide all the bad so they can look good ! So happy for you Linda you deserve it !

  7. Mary Pat says:

    How much has J&J spent on legal fees to defend this case? Now, if it goes to the Supreme Court, how much more will their defense cost? It would be interesting to chart the defense expenditures for all of the pharmaceutical companies.

  8. K says:

    Just searched the web to see who has reported on this and again it’s only Jane! Media hasn’t touched this!! Unbelievable!!

    • Jane Akre says:

      I wish that wasn’t true.

    • Bonnie says:

      K it is posted in NJ news Star Ledger & I think the other is Bloomberg News! I was happy to see that as its getting out there little by little. I know they all should share it like they do with J&J Shares!

  9. Don't give up says:

    This was an important case for J&J it was one of the first ones it took to long to get to this point should have been over with ages ago.
    Congrats Linda hopefully J&J can stop paying these lawyers as much as the mesh injured are winning it only makes sense settle J&J you will save a buck or two and help these poor women that have been injured by mesh

    • Jane Akre says:

      This is an extremely important case you are right…..the appeal decision goes a long way to knock out any opposition in the future I believe. It is precedent setting. Linda and Jeff are incredibly deserving!

  10. I was implanted with this harmful product some years ago and just had a urethral diverticulectomy recurrent infections and constant pain congrats to you Linda I wish this process for myself would pick up the speed the company knows they need to pay but yet are dragging this entire process out

    • Anonymous says:

      Scorned by mesh I understand where you are at as do so many women out here and what’s so sad is the amount of the settlements that are being offered is an absolute disgrace but when can we get these sent back to our state so we can have our day in court that’s what I’m asking how long do we have to wait for the judge to decide well nothing’s going to be settled in my court let’s send these back to the state courts it will be years and years and most of us will die before we ever see a penny that is the probably the saddest part of all of this unless you’re willing to take $40 or $20 thousand for all the pain and agony you’ve been through this is the worst time in women’s history and for so-called Justice in the United States of America shame on the courts shame on them manufacturers shame on the attorneys that are willing to sell their clients down the river I cry out and anger and in pain and no one listens

      • keith beard says:

        BLESS YOU. YOU ARE SO TRUE SOME OF US WILL DIE BEFORE WE GET OUR DAY. SO GLAD FOR LINDA SHE DESERVE HER DAY AND GOT IT HOPE EVERY THING TURNS OUT GOOD FOR YOU I HAVE HAD 5 SURGERIES AND SUFFERS EVERY DAY ..MARY

      • This is ridiculous that we have to wait years an years to be compensated for this I wake up with pain every morning in pain I wonder if some of the new problems that I’m having are related to this mesh my relationship is going further in the drain I wonder what would these manufacturers say and do had this been one of there loved ones suffering from this messy mesh ordeal would they drag there feet and be so reluctant to pay my prayers and blessings are with all the women who are suffering

  11. Linda says:

    It’s a great verdict for all of us! For each win, we can all celebrate. Each woman implanted and suffering deserves this and slowly the truth is coming out. I am so looking forward to the case with 27 women. Days like this give us hope that justice will come!! The money does not fix women but it can help compensate for lost wages. I also believe J and J feels some pain with each award.

  12. ange says:

    hi what about us with proprolene mesh we are suffering also dr put a full sheet in to hold my intestines in and its failed , my bowell has collasped pain is horrific ..were do we go from here

    • Jane Akre says:

      Are you talking about hernia mesh? Bruce Rosenberg knows docs 954-701-5094. Keep trying, he is at a conference

      • LC says:

        Hello Jane; is there a chance these cases can be returned to the state?

        • Jane Akre says:

          Gross was heard in New Jersey state court…. it is over now and the final appeal decision is likely the last one. She is from South Dakota but the defendant company’s home is NJ.

  13. K says:

    Jane, thank you so much for all you do for us!!! Without you we would all be lost!!!

  14. Debi says:

    I can’t help but think this is going to help in the Judge Goodwin trial. I am not sure but am hoping. Congratulations Linda……

  15. I’m awake now in pain restless unable to sleep mentally I’m exhausted with this entire ordeal I don’t think I will ever have a sexual relationship again this is torment I’m humiliated because I have to walk around with a pis bag on I’m so embarrassed when I go into public in my mind I’m wondering to I smell like urine very self conscience about having to wear this bag this mesh has opened an entire different chapter

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