Thanks again to Courtroom View Network for access to this trial!
February 21, 2013 ~ On this Day 26 of the Linda Gross v. Ethicon trial, the jury took this second full day of deliberations to ask the court to re-read Ms. Gross’s testimony from her court appearance.
The jury received the case after closing arguments on Friday, February 15, and jury instructions when they returned on Tuesday, February 19.
The jury must decide whether the Prolift product made by Ethicon, a division of Johnson & Johnson, was defective and whether her physician, Dr. Kevin Benson, was adequately warned about the potential for complications. The physician is the end user of any medical device, not the patient, and the failure-to-warn would apply to the doctor.
The third charge for the jury is to determine whether or not Ethicon made misrepresentations to Ms. Gross, 47, or Dr. Benson about the safety and risks of Prolift.
Ms. Gross had the Prolift surgery in July 2006 to correct a prolapse of her rectum into her vagina.
She says the surgery changed her life.
“Who you see standing here now is not who I was,” she said. Gross is on 20 different medications and has had 19 operations and 400 “medical encounters” since July 2006. She called them “painful and humiliating.”
Ms. Gross is unable to work and says she cannot sit longer than 20 minutes.
In the rather dry reading of the court reporter, the nine jurors, six women and three men, missed the emotion that Linda Gross brought to the stand such as her emotional outburst at Ethicon attorney Christy Jones.
“Why did I need to keep researching. You are trying to blame it on me ~ it’s not right!’ she became emotional during trial.
Linda was told by Dr. Benson she should expect a two to three week recovery following one night in the hospital. She did not receive a patient brochure so she went home and printed out one on the Ethicon website.
Ms. Gross said Dr. Benson was very enthusiastic about the new Prolift System. During courtroom testimony it was revealed he was one of the many Ethicon consultants who was training doctors on the novel use of a mesh kit and implantation tools that would be called Prolift.
Prolift was sold by Ethicon with no FDA notice, a fact that was not allowed to be considered by jurors in this case.
Ms. Gross said she expected the brochure would have told her everything she needed to know because she trusted a worldwide company such as Johnson & Johnson.
Since she had to manually help herself defecate she said, “I had hope I was willing to take a chance I might get better.”
Ms. Gross said she developed urinary problems since Prolift and has had to self-catheterize to urinate four times a day since her surgery.
Jurors were reminded by the defense that Gross, a nurse, had seen a hernia mesh protruding through a patient’s stomach during her job.
During trial plaintiff attorney Adam Slater showed jurors internal company emails that J&J was told by French scientists the Prolift mesh (Gynemesh used in hernia repair) should be substituted with another mesh less likely to cause problems.
Despite many red flags from scientists, the company and its marketing arm continued the product to its launch date of March 2005.
If jurors determine Prolift was defectively designed and J&J failed to provide adequate warnings or misrepresented the dangers to Ms. Gross and that was the proximate cause of her injuries, the jury can then consider damages.
If compulsory damages are awarded, Judge Carol Higbee can determine whether the plaintiff can also seek punitive damages which are capped at five times compensatory damages or $350,000 whichever is higher.
The jury returns for deliberations Friday morning.