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Day 31: Linda Gross v. Ethicon It's Over! $11.1 Million

Linda Gross

Linda Gross

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.

Adam Slater

Adam Slater

“Teach them, teach them. Deter and discourage J&J and Ethicon from similar wrongful conduct in the future,” he said.

FRAUD

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.

Linda Gross

Linda Gross

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.

AAA MAZIE ENDMazie 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,

Christy Jones

Christy Jones

“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.

Christy Jones

“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.

Prolift kit

Prolift kit

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.  #

Follow all 30 other days of coverage on MDND Legal Desk as well as the day-to-day proceedings on the MDND Facebook page including graphics shown to the jury.

 

14 Comments

  1. jade says:

    Appeal on what grounds? J&J should quite while they’re ahead!

  2. jade says:

    So Christy Jones was begging for mercy – it is better to ask for forgiveness than to ask for permission. How can she, as a women, sleep at night! No one understand this pain and sufering UNLESS it is yours!

  3. Jim says:

    A sham has been commited, J&J and Ethicon have pulled a fast one. Then to think this couple in their 40’s to have to live this type of life. I know I’m one of the husbands who must take care of my wife because some idiot wanted to beat another company to the market. Forget safety, just make the buck.

  4. Susan says:

    I DO NOT UNDERSTAND how the courts can even allow J J to make an appeal!! They just want to drag this out for YEARS! Can someone pls explain this to me.

    • AnonymousCoward says:

      It is allowed for the same reason that we have the 5th amendment and other protections. Does not matter if we like the person/company that is being protected. In civil cases such as this, one appear (for either side) is guaranteed. Cause would have to be shown for any other appeals.

      For better or worse, this is how our criminal justice system works.

  5. Susan says:

    I am a mesh victim of CR BARD! I’ve had 5 surgeries – my life is forever changed!! this is all so frustrating how these BIG COMPANY’S can run all over us. I think it may be time to form groups around the country and PROTEST OUTSIDE THE DOORS Of these MEAGA COMPANYS !! since the Media evidently is NOT going to talk about it!! LETS MAKE THEM HEAR we need to get the word out how ours lives have been destroyed – then when someone goes through a long messy trial like Linda just did- OMG J J APPEALS!!! It’s disgusting!!!!

  6. Janet says:

    I have a question…articles state that this mesh was placed in the market by J&J in 2005. Does anyone have any information on other J&J TVT products that would have been on the market in 2004 and whether or not they have produced problems?

  7. barbara dykes says:

    This thread was very emotional and helpful to me mentally. As a RN, I believed in my female Gyno. She told me the “worst that could happen, It doesn’t always work”. Well, to CYA all doctors say that about everything!, she flipped out the “sling”, said nothing about it being MESH and since my bladder was bulging out, I was on board.If I could go back in time, I would have looked for a Pessary which was a simple device that women could use to support the bladder. And to top it off, The FDA warning was posted on the wall (2008) but never pointed out. I blame my Doctor who did not warn me. Again, the reimbursement from my great BCBS Policy lit up her eyes so the surgery was done. After surgery, I could not urinate and had to use catherization. As an RN I was comfortable doing that but thought it was temporary…6 years later, I still have to cath and get frequent infections. My Urologist wrote me a script for Antibiotic and said to take a cranberry tablet every day. My OB Doctor did an exam and said after 2-3 years “Your mesh is totally ERODED” You need to have it removed. Okay, asked him do you know an MD who does the Explant? He found one for me. Had to drive 300 miles there, have surgery, and head back lying in the Floor of our SUV the next day. My Explant MD was a Uro/Gyno and very caring. On the morning of the surgery he said this just before we went in Operating Room “Barbara, I am sorry but I may not be able to get all the Mesh and will need to put MORE mesh in to anchor your Vagina or it will be upside down! Really?? When I thought it could not get any worse, it did.I tried to work with Hospice where I spent most of my career. I had to drive long distances. Before all this I had to carry a lot of water w/me so then I had to stop somewhere to urinate frequently. Needless to say, I had to give up my Hospice work and all work due to cramps, UTIs, and severe depression at the loss of my work life. I cannot even volunteer. My husband is 12 years older and we had hoped to retire and “see the world” with saving my salary and some of his over our lifetime. He now HAS to work until ???what seems forever. I feel cheated out of jumping into my car and heading to Atlanta to keep my grandkids. I have 3 there and 2 close by. My mother used to say “God doesn’t promise us a rose garden” and I am not a person with unreal expectations nor do I have any history of lawsuits at all. I was already so depressed trying to cope with daily isolation and now I am trying not to let ANGER take over my life. But when I read about Johnson and Johnson’s lack of proper product testing, and their TEN years of document destruction, I am dumb founded. My faith in the goodness of people is in question. The judge of J&J Bellewethers entered a motion of “Spoliation”. As I am not a legal person, my research tells me that for TEN years they wiped out hard drives, destroyed employee files, etc. etc. The Judge has ordered J&J be taught a lesson. Default judgements will follow Belleweathers. And we get to share Punitive damages of 70% to our state. This has almost made me against Capitalism because of the GREED and MALICE companies do all the time for the ALMIGHTY dollar.My faith in God is greater than the ANGER I have for what these companies have done to us. And my youngest son (I have 3) was implanted w/ the Hernia mesh.I pray all of you will not let this tear you down. Trust in God, HE will provide comfort.

  8. jacqui scott says:

    i am a mesh survivor i have the gynecare prolift total pelvic repair system + the tyco ivs tunneler i feel for linda and geff gross what gives J&j the right to apeal this verdict have they not done enough harm already not just to the gross family but to thousands of women all around the world they should be charged as criminals they knew what damage these meshes would do to us thats why they destroyed the paper work shame on them !!!!! stay strong linda and geff gross

  9. fran lane says:

    How in anyone’s mind can the mesh manufacturers fight these flames. Knowing they are wrong.

    Knowing that the mesh that was inplanted in our bodies was going to literally ruin our lives in every way.

    I was implanted with mesh in 2008.

    Started suffering pain within 6 weeks.

    Mesh partially removed. Could not remove all the mesh, because it had eroded into my muscle.

    At my age the doctors would not attempt to take cut the mesh out of the muscle.

    So I will suffer for the rest of my life. Never knowing when the pain will hit. (Out to dinner,the movies, driving, sleeping) my life has been ruined

    Pain pill for the rest of my life.

    For what!

    40,000.00

    Shame! Shame!

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