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Day 29: Linda Gross v. Ethicon Punitive Phase: Wanton & Willful Conduct?

Thanks again to Courtroom View Network for access to this trial. To see the evidence as it was presented in court today visit the MDND Facebook page.

February 26, 2013~ An attorney for Johnson & Johnson begged the jury today not to award punitive damages in the Linda Gross v. Ethicon trial that could amount to $20 million.

Judge Carol Higbee reminded the nine jurors who returned for this final phase of the 29 day trial that the standard must be clear and convincing evidence that the harm suffered by Linda Gross was the result of acts or omissions by the healthcare giant accompanied by a wanton and willful disregard  of the patient.  The company would have had to know the acts or omissions had a high probability of harm but showed reckless indifference to the consequences.

A punitive award is intended to discourage egregious behavior in the future. Jurors also have the option not to award punitive damages when they reconvene Wednesday morning.

Linda Gross

Linda Gross

Jurors on Monday awarded Linda and Jeff Gross $3.35 million in compensatory damages for the harm she suffered after being implanted with the Prolift transvaginal mesh. Specifically, the jurors found Ethicon, a division of J&J, failed to properly warn of the risks of vaginal mesh and made fraudulent misrepresentation to Ms. Gross, 47, a South Dakota nurse, who sued the company.

Christy Jones, the attorney for Ethicon asked the jury not to further punish the company beyond yesterday’s award.

Jones spoke softly with many pauses when she told jurors the company cared about women’s health and did not act with wanton and willful disregard of the consequences, a higher standard to prove then the preponderance of the evidence standard for compensatory damages.

aaaajones begs pleasds to the jury consider the bufrden of proofI’m asking you, I’m begging you to think about what was done and why” she said pleading and bending forward to the jurors.

“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,” she said.

WORTH OF THE COMPANY

Evidence was presented by both sides about the value of Johnson & Johnson and its various healthcare divisions.

Frank Tinari PhD, Economist

Frank Tinari PhD, Economist

Economist Dr. Frank Tinari was brought back to the stand where he showed the total assets of J&J and its 250 divisions at $121.3 billion with a net worth in 2012 of $64.8 billion.

“Take one-thousand million and that’s one billion,” he said trying to put it in perspective.

J&J averaged $11.5 billion every year in profit since 2009 with expenditures of $57 million every day in marketing and advertising.

Attorney David Mazie asked “Every 45 minutes of every single day, J&J spends the amount the jury awarded yesterday?”

“That’s correct,” said Dr. Tinari.

On cross exam, Ethicon attorney William Gage reminded jurors that was the relative worth of all of the subsidiaries, not just women’s health division.

Mark Schneider, financial analyst J&J

Mark Schneider, financial manager, J&J

The defense brought Mark Schneider to the stand, a senior manager of financial reporting at J&J.  Looking uncomfortable at times, Schneider broke down the numbers for Prolift profits concluding that the net income from the sale of the Prolift vaginal mesh after taxes in South Dakota was $24,498 and in New Jersey was $122,413.

Mazie asked if he had a dollar-for-dollar amount for Prolift sales, which Schneider did not.

Mazie: “Are you aware that for the first half of 2008 the total sales for Prolift were $55 million? Schneider answered that might have been a peak period.

Mazie: “You are telling us under oath that J&J made $24, 498 in profit in South Dakota? That’s what you’re telling them?

Schneider: “Yes.”

Mazie: “The profit in New Jersey for seven years was $46,647?”

Schneider: “That’s based on the profits and loss that I had.”

Mazie: “No further questions,” he ended abruptly.

CLEAR AND CONVINCING EVIDENCE

Adam Slater

Adam Slater

In the afternoon, Ms. Gross attorney, Adam Slater reminded jurors of the importance of the  civil justice system.

You have Linda and Jeff coming from South Dakota, coming to a courtroom against Johnson & Johnson, one of the biggest companies in the world and they get nine people from Atlantic County to decide what’s right and wrong. It doesn’t get any better than that,” he said.

Slater said the burden for jurors now is to consider clear and convincing evidence of reckless indifference which he said jurors had already found in concluding J&J fraudulently misrepresented  the dangers of Prolift and failed to warn about the risks of Prolift.

He reminded jurors of the words of Medical Director, Dr. Charlotte Owens who confirmed there would be some women who would experience chronic inflammatory reaction some at a significant level, though the company never explored removal options.

Dr. Axel Arnaud, Ethicon

Dr. Axel Arnaud, Ethicon

Dr. Axel Arnaud’s testimony was replayed in which he said manufacturers don’t have a “crystal ball” to know what complications will arise and that a 5-15% complication rate is”a good wording,” even though the patient brochure called the complication rate “rare.”

Slater asked jurors to “deter and discourage” the corporate behavior and “send a message and make that number count and make sure it’s heard.”

Punitive damages in New Jersey are capped at five times the compensatory amount or in this case $16.75 million, a fact jurors have not been told.

 

 

 

8 Comments

  1. George says:

    Thanks Jane for the coverage!

    If the maximum is agreed – $16.75 Million which is only 29% of one day spent on advertising or a fraction of 1 percent of that yearly budget. Doubtful this will sting J&J, maybe liability insurance will go up. However, the other J&J divisions and medical device manufactures will take notice, so this would be a step in the right direction for all mesh victims. Remember the lawyers fees can be as much as 75% and in this suit have earned it.

    Sadly, Ms. Gross also is not healed with the verdict or punitive award (we all wish that was the outcome). When this trial wraps up Linda needs to emotionally recover from this legal ordeal, where she has shown tremendous courage, so she can repair physically. I hope you consider gene therapy or stem cell replacement offered in other countries so may can fully cover – soon.

    Thank you Linda and Jeff Gross!

    • Jill says:

      What do you mean by gene therapy/stem cell replacement? for Mesh? please clarify…what country>=?’

    • Jane Akre says:

      Yes, next time people go for the “Tort Reform” crowd,,, that is capping awards, they should know first where this movement comes from – from those with the most to loose. Second- they are ultimately hurting themselves because the very few cases that ever make it to court, and most are never filed, go unserved and unable to send a message, in my opinion. The Tort Reform movement had its roots in Big Tobacco and Big Asbestos and is carried by the U.S. Chamber of Commerce. But don’t expect to see this on the evening news!

  2. a nurse says:

    From one nurse to another- Dear Linda, Thank you for the courage you (and Jeff) have shown in this trial. You have stood up, not only for yourselves, but for injured, mesh-harmed patients everywhere. You have shown that, through the actions and inactions of J&J/Ethicon, that you did not have “informed consent” prior to your surgery. You have suffered horribly because there were no studies on how to best manage the complications when they occurred, leading to numerous surgeries and other treatments to try to help your awful situation. I pray that you can find the help you still so desperately need and that you are able to someway, somehow go on with your life as happily as possible.

    Thank you, my nursing colleague, for standing up for patient safety and informed consent for all of us.

  3. Kathy says:

    I’m praying that after this day all doctors will step up and do the right thing. The nightmare or trying to understand what to do for our own health because of a mesh sling is one of the most painful ordeals I have ever been a part of.

    We as human beings assume that a doctor will help us. instead, we have walked around ( as best we can ) in a fog trying to get help for our own health for years. For me, since 2007. Being in pain along with the stress has taken such a toll on us has that I , as many others, have given up for long periods of time and finally, with the help of this site, MMND, I have found a new strength to try again to find help.

    I beg any doctor reading this site, please , help us. Please, do it the right way. Do not allow just any doctor to remove mesh. Please, make sure we will not be injured again, in removing mesh. We must be protected.

    This is what keeps me up all night, along with my misery.

  4. George says:

    Jill,

    These are techniques that promote healing from within the body. Both ideas are still in the research phase but some success has been achieved. The most famous in the general media is Suzanne Somers

    http://thestir.cafemom.com/healthy_living/131072/suzanne_somers_breast_cancer_breakthrough

    Japan and Germany seem to be leading the way in these novel research areas.

    With gene therapy, for example maybe with abdominal surgery recovery that would mean adding or turning on a gene that will help the fascia of the abdominal wall heal properly. Or maybe help the nervous system recover completely from repeated surgery to reduce pain. Multiple abdominal surgeries resulting from mesh implant complications creates such lasting damage that our cells can not function properly to heal the body fully.

    Stem cell therapy is taking a cell that has not yet been “programmed’ by the body to perform a function and triggering it to make healthy cells in an organ system.

    Gene therapy info from the MAYO Clinic

    http://www.mayoclinic.com/health/gene-therapy/MY00105

    Stem cell info from the national institute of health

    http://stemcells.nih.gov/Pages/Default.aspx

    Hope this helps G

  5. Dan Hooper says:

    With all the pending cases, is there a chance J&J will file bankruptcy or go out of business?

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