January 28, 2012 ~ Day 12 of the Linda Gross v. Ethicon trial looked at the lifelong losses she faces following a transvaginal mesh implant, Prolift.
On the stand was Edmond Provder, of Occupational Assessment Services, a New jersey firm, who interviewed Linda about her life, her work, her income, her lifestyle for about 8 hr on April 18, 2012.
Thanks to Courtroom View Network for access to this trial.
Born April 30, 1965, Linda today is in chronic pain. She can only sleep four hours a day with medication. She feels cool and clammy, nauseous, has swelling, increased bowel movement and must self-catheterize four times a day. She is in constant pain and spends all but about four hours a day lying down. She cannot sit more than 20 minutes. Reading and computer work are difficult because of her inability to concentrate.
Gross can drive for about one hour with a special seat. Her family helps with housework. She is able to care for herself in terms of washing and dressing. She is on medication and visiting the Mayo Clinic pain clinic in March at a cost of $29,000. She is depressed in that she is not enjoying life or any activities. She used to like to camp and fish. Gross is unable to work as a nurse and in hospice care.
Careful not to blame the victim, the attorney for Ethicon asked if he had taken into account any of the pre-existing conditions Linda experienced such as high cholesterol, numerous surgeries.
Provder said he had not.
Kelly Crawford asked if he met with Linda in person? No, he conducted a phone interview. Crawford, the attorney for Ethicon asked if he had shopped around for discount medications online.
He said he had averaged online with local brick and brick and mortar pharmacies nearby. Plaintiff attorney David Mazie established that many people do not like to shop for medications online.
He also asked the witness if aging might affect the numbers?
Provder: “Their ability to do things may deteriorate more than the average individual.”
In that case the jury had the discretion to increase the compensation numbers, Mazie said.
Crawford needed to establish Mr. Provder was not in any way assigning blame to Ethicon.
Q: In your report in this case you were asked to look at the global picture of what her needs are? You are not providing the jury with any opinion or saying that any single one of these items is caused by the defendants?
A: “I’m not a causality witness.”
Judge Carol Higbee reminded jurors that information about the cost of living and future losses are opinion and they are the ultimate judge about the reliability of future projections. It’s a difficult situation she said because nobody knows 100% what the future will hold.
Since jurors in this trial are allowed to asked questions, one asked how insurance may impact the big picture. Judge Higbee said she would answer that question at the end of this trial.
Economist Projects Future Losses
Dr. Frank Tinari, former Seton Hall professor and Economist, now a consultant, testified as to Gross future losses. Averaging gross earnings in 2006, of $47,000 in 2006, her last productive year was the the same year she had the Prolift implanted.
So far his estimations show up until February 2013 she has lost $204,000 in income which includes out-of-pocket expenses.
Dr. Tinari estimates a loss in future earnings at $727,000. Adding that to the future value of each component of her lifecare plan, and the income losses so far, he established a $2.8 million in losses as a result of the injuries following her Prolift mesh implant.
Again Ms. Crawford established he was not passing any judgment on Ethicon.
Q:”You are not offering an opinion about any kind of damages, just economic damages?
Q:”While you do work for plaintiffs and defendants, you testified 70-75% of your work is on behalf of plaintiffs?”
Q:”If the defendants have done nothing wrong, if there were no liability, none of these figures matter at all?”
A:”I guess that would be right.”
David Mazie came back to establish if health care costs rose above the 1 to 4% he had projected the award could be increased.