Judge Higbee Who Presided Over First J&J Mesh Case, Dies of Heart Attack

Jane Akre
January 6, 2017

Judge Carol Higbee, NJ Law Journal

Mesh Medical Device News Desk, January 6, 2017 ~ Judge Carol Higbee Dies at age 66. Wanted to remain on the bench past her retirement age.

New Jersey Appellate Division Judge Carol Higbee died Tuesday, January 3, reportedly of a heart attack, according to the New Jersey Law Journal.

Judge Higbee presided over the case of Linda Gross v. Gynecare, Ethicon, Inc Johnson and Johnson, John Does 1-20. (In Re Pelvic Mesh / Gynecare Litigation, No. 291, Linda Gross v. Ethicon, No. ATL-L-6966-10, N.J. Super., Atlantic Co., NJ).

It was the first trial that challenged the assurances from Johnson & Johnson and its Ethicon division, that its Prolift pelvic mesh kit was safe for use. J&J lost that argument, but the jury did not decide the Prolift was defectively designed.

Adam Slater, Feb. 2013

This quote is a late add***

Adam Slater of Mazie Slater, was Linda Gross' attorney who tells MND, "Judge Higbee was a good and fair person, and that guided her as a Judge. I personally feel a tremendous loss and I have spoken to many people who feel the same way.

She touched so many people with her intellect and sharp wit, including myself, and including top defense attorneys who I know also respected her immensely. She was the perfect judge to manage the personalities and complexities of high stakes pharmaceutical litigation, especially the pelvic mesh litigation, which was in full swing in her court well before any other court in the country. Her handling of the Gross v. Ethicon trial, which lasted two months, was masterful - proven by the decision by the appeals court affirming all of her key decisions during the trial.

Those decisions, which bear her imprint, are now a guiding light as we continue to battle with the mesh manufacturers in New Jersey and around the country."

A call for comment from Christy Jones, who represented J&J in the Gross trial went unanswered.

Christy Jones, defense attny from Linda Gross trial Feb 2013

Dr. Kevin Benson,, implanting physician

The jury in Gross v. Ethicon did decide the defendant J&J did not provide adequate warning to the implanting surgeon, Dr. Kevin Benson of South Dakota, and that was the proximate cause of Ms. Gross' injuries.

Ms. Gross, a nurse from South Dakota, was awarded $11.1 million by the Atlantic County Superior Court Jury in February 2013. J&J has exhausted the appeals process at this writing but the award has yet to be issued.

Ms. Gross and her husband were awarded $3.35 million in compensatory damages and $7.76 million in punitive damages.

Judge Higbee presided over high-stakes pharmaceutical litigation as a Superior Court judge including Vioxx and Fosamax. She was appointed by Gov. James Florio in 1993. In 2014 she moved to the Appellate Division.

Chief Justice Stuart Rabner said Higbee was known for fairness and knowledge of the law, reports NJ Law Journal.

"Judge Carol Higbee devoted herself to the administration of justice for 24 years on the bench. Her reputation for judicial scholarship and fair, evenhanded treatment of all litigants was well deserved. She will be sorely missed by her colleagues and friends in the Judiciary. Her passing is truly a loss to us all," Rabner said in a statement.

Linda and Jeff Gross, from PBS Need to Know

Judge Higbee was past retirement age but chose to remain on the bench. She was reportedly well liked, had a “hell of a sense of humor,” and was respected by the court staff, but was sometimes accused of being pro-plaintiff in the way she handled cases.

Read the New Jersey Law Journal article here.

Read MND coverage of Linda Gross appeal here. The defense team said she did not correctly apply the learned intermediary doctrine.

MND, Feb 24, 2016, Gross Case before NJ Appeals Court here.

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