February 28, 2013 ~ After a 31 day trial, jurors in the Linda Gross v. Ethicon case awarded $7.76 million in punitive damages to Linda and Jeff Gross for the injuries she suffered from a Johnson & Johnson product, the Prolift transvaginal mesh.
The nine-person jury awarded the South Dakota couple $3.35 million in compensatory damages Monday, February 25, making the award total $11.1 million.
Jurors were encouraged to punish the company with total assets of $121.3 billion and make them feel the award.
“They intended to deceive,” said Adam Slater, attorney for Ms. Gross of Mazie, Slater Katz & Freeman.
"Teach them, teach them. Deter and discourage J&J and Ethicon from similar wrongful conduct in the future,” he said.
Jurors found that J&J and its Ethicon unit failed to properly warn of the risks of the transvaginal mesh implant, the Prolift and the company made fraudulent misrepresentations to Ms. Gross, a nurse who sued due to her injuries.
She has endured nine mesh removal and 18 surgeries altogether. Testimony in the case shows she lives with chronic pain, is on multiple medications and cannot sit for more than 20 minutes.
The jurors did not find the Prolift mesh was defective.
David Mazie pointed out to the jury that the original $3.35 million verdict represented just 45 minutes of the $57 million per day advertising budget for J&J in 2012.
Mazie told the jurors, “There is a culture at Ethicon and J&J, it wasn’t one person or one isolated event. It was person after person after person. They have a culture there clearly from the evidence and that culture does not care. They care about one thing, the almighty dollars. Hit them right in the pocketbook.”
Christy Jones, who represented Ethicon in court clasped her hands together and leaned forward to the jury during the punitive phase saying,
“I’m begging you to think about what was done and why. I understand your verdict. I understand you have said we have fallen short but I ask you to think about the fact that is completely different from saying we should be punished because we deliberately acted or failed to act with reckless indifference of the consequences.”
WILLFUL AND WANTON
To find a punitive award jurors must have concluded there was willful or wanton disregard of Linda Gross’s rights through a deliberate act or omission; done with the knowledge there was a high degree of probability of harm and done with reckless indifference to the consequences of the act. The evidence must be clear and convincing with no doubt or substantial doubt. That is a tougher standard than the preponderance of the evidence standard used at trial.
Jurors had the option to award no punitive damages. The six men and three women declined to comment after the trial concluded, reports Bloomberg.
Ethicon announced it would appeal both monetary awards according to Sheri Woodruff, a company spokesperson in an email to Bloomberg.
“The punitive damage award is unsupported by the evidence presented at trial. Ethicon acted appropriately in the research, development and marketing of the Prolift,” she said.
PROLIFT BYPASSED FDA APPROVAL
Last June the company announced it would remove from the market Prolift and three other vaginal meshes for financial not safety reasons.
Johnson & Johnson began marketing Prolift, a polypropylene mesh, in March 2005 bypassing any Food and Drug Administration clearance. When the FDA discovered that action it approved Prolift for market in 2008 without imposing any sanctions.
There are currently 2,182 cases against Ethicon filed in New Jersey Superior Court before Judge Carol Higbee as well as 3,988 cases filed naming Ethicon consolidated in the Southern District of West Virginia.
Other mesh manufacturers product liability cases filed in West Virginia multidistrict litigation include C.R. Bard (2,080 cases as of Feb. 25); American Medical Systems (4,208); Boston Scientific (2,394) and Coloplast (203).
The many lawsuits filed in individual state courts naming polypropylene mesh used in prolapse repair are expected to top 20,000 and run into the billions of dollars.
Last July, Christine Scott won a $5.5 million verdict against C.R. Bard in a California state court. See the story here. These are the first two actions putting the petroleum-based mesh on trial.
Hernia repair patients implanted with the same polypropylene mesh often report the similar symptoms of mesh migration, erosion, infection and nerve damage. #
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