Linda Gross Prolift Case Survives Appeal by J&J

//Linda Gross Prolift Case Survives Appeal by J&J

Linda Gross Prolift Case Survives Appeal by J&J

Linda Gross in NJ trial, Feb 2013

Linda Gross in NJ trial, Feb 2013

Mesh News Desk, March 29, 2016 ~ An appeal by Johnson & Johnson in the $11.1 million Linda Gross Prolift mesh case was decided in favor of Ms. Gross by a three judge appellate panel from New Jersey this morning.

Prolift on eBay July 2013

Prolift on eBay July 2013

Judges Fisher, Espinosa and Rothstadt of the Superior Court of New Jersey Appellate Division ( Doc. A-0011-14T2), decided to allow to stand the $3.35 million in compensatory damages and $7.76 in punitive damages decided by an Atlantic City, New Jersey in February 2013.

Linda Gross, a nurse from South Dakota had been implanted with the Prolift, the largest of the polypropylene pelvic meshes made by Ethicon, a division of Johnson & Johnson. Prolift has since been quietly removed from the market.

Upon the jury award, J&J immediately filed an appeal.  “The punitive damage award is unsupported by the evidence presented at trial,” said a J&J spokesperson to Bloomberg News at the time of the verdict. “Ethicon acted appropriately in the research, development and marketing of the Prolift.”

Upon hearing the jury verdict, a lawyer for Ethicon, Christy Jones said:

Christy Jones, Feb 2013

Christy Jones, Feb 2013

“I understand that you have found that we could have done a better job and that we in fact fell short,” Jones said Feb. 26.

“My clients understand that. We hear you, I promise you….while I confess to you from the bottom of my heart that it hurts, and we’re disappointed in the verdict, we nonetheless appreciate what you have said and recognize and respect your verdict.”

Jurors found in favor of Linda Gross on her claim that J&J failed to provide adequate warning to the implanting surgeon, Dr. Kevin Benson, fraudulent misrepresentation to Ms. Gross, and loss of consortium, however the jury did not find the Prolift Pelvic Floor Repair System was defectively designed.

J&J filed a motion for a new trial. On July 15, 2014, that was denied.

See the appellate decision here.

THE APPEAL

J&J argued trial judge Carol Higbee made an error when she failed to apply the learned intermediary doctrine to the fraudulent misrepresentation or deceit claim. The learned intermediary is the doctor, in this case Dr. Benson, who is the only person required to receive warnings about the product from the company. Ethicon argued it should not be held liable because it is the doctors’ responsibility to inform his patient.

“[T]he learned intermediary doctrine does not eliminate a factfinder’s need to consider whether the patient’s decision would have been different if the warning had been sufficiently thorough,” the judges said.

“The learned intermediary doctrine imposes a duty on a manufacturer to warn physicians of the risks involved with its product, thereby placing the physician in the role of intermediary between the manufacturer and the patient,” the judges said.

Linda Gross has said she would not have agreed to the surgery had she been properly informed by her doctor.  She has endured 20 surgeries both for removal and repair.  The lack of a full informed consent was the proximate cause of her injuries, the judges decided.  Ethicon understood the potential dangers of its pelvic mesh implants and failed to pass those along to the doctors.

J&J also argued that the causation evidence was insufficient to prove a failure to warn. Judge Carol Higbee also  erred when she made erroneous evidence rulings and allowed the jury to consider punitive damages, said J&J in its appeal.

Adam Slater, Feb. 2013

Adam Slater, Feb. 2013

“This decision is very good primer on learned intermediary,” says trial attorney Adam Slater to Mesh News Desk.

“Only if there is adequate warning given to Linda Gross can she have true informed consent.

“If the warning was not adequate, if she didn’t have true informed consent, the learned intermediary drops out of the case.

This is critical.”

Slater says the Bottom Line – A decision to have a pelvic mesh device permanently implanted in your body is that person’s decision.

“They put the power back in the hands of women not to the doctor to decide what happens to a woman’s body.”  

Slater adds the defense has been winning a lot of arguments in court against that principle, based on the learned intermediary doctrine and this ruling will change the landscape for all pelvic mesh litigation.

 

WHAT’S NEXT?

Johnson & Johnson has 20 days to  Petition the New Jersey Supreme Court to ask it to hear the Gross v. Ethicon case. Generally that is only granted if there are conflicting lower court rulings that must be sorted out by the high court of a state.

In this case, Slater says the respected New Jersey Appellate panel took care to carefully detail the case.  A decision on whether the New Jersey Supreme Court will or will not hear it could be made by summer.

If the Gross cases is rejected by the NJ Supreme Court, J&J will have to pay $11.1 million. That would make it only the second time a plaintiff has received a jury award after the defendant company ran out of appeal options. That case was the $5.5 million pelvic mesh trial of Christine Scott in her case against C.R. Bard.  #

 

LEARN MORE:

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION, March 29, 2016
http://mskf.net/wp-content/uploads/2016/03/Gross.pdf

Bloomberg News, J&J Owes $7.76 Million in Punitives in Vaginal Mesh Case, February 28, 2013 
http://www.bloomberg.com/news/articles/2013-02-28/j-j-owes-7-76-million-in-punitives-in-vaginal-mesh-case

Mesh News Desk, Feb 24, 2016, First Bellwether Pelvic Mesh- Linda Gross Case Goes before NJ Appeals Court
https://www.meshmedicaldevicenewsdesk.com/first-bellwether-linda-gross-case-goes-before-nj-appeals-court/

Mesh News Desk, Feb. 28, 2013, Day 31: Linda Gross v. Ethicon It’s Over! $11.1 Million
https://www.meshmedicaldevicenewsdesk.com/day-31-linda-gross-v-ethicon-its-over-11-1-million

Mesh News Desk, July 17, 2014, NJ Judge Upholds $11 million Linda Gross Award- Ethicon Announces Another Appeal
https://www.meshmedicaldevicenewsdesk.com/nj-judge-grants-11-million-linda-gross-award-ethicon-announces-another-appeal

Mazie Slater, Testimony of Ethicon Witnesses that Resulted in Verdicts
http://meshcomplications.com/

Adam Slater, Mazie Slater, portion of closing argument in Gross trial, Feb. 2013, Atlantic City, NJ
http://mskf.net/wp-content/uploads/videos/mesh/finals/Mazie-3-Adams-Punitive-Closing-FINAL.mp4

 

By | 2016-04-01T15:26:42+00:00 March 29th, 2016|News|35 Comments

About the Author:

I’m National News Editor, Jane Akre and I began Mesh Medical Device News Desk aka Mesh News Desk (MND) in the summer of 2011 just after the Food and Drug Administration issued an explicit warning to the public that complications associated with surgical mesh used for prolapse repair (POP) and incontinence (SUI) are NOT rare! That was the starting point for the litigation you see today and thousands of lawsuits have been filed by women whose lives have been altered, some permanently, by the use of this petroleum-based product.

35 Comments

  1. Anonymous March 29, 2016 at 3:54 pm - Reply

    Praise God! Good for you Linda!! When will the rest of us get our days in court is what I’m wondering how long will it be held up by Judge Goodwin? I’m so very happy for you Linda!!!

  2. stopmeshimplants March 29, 2016 at 4:11 pm - Reply

    Very happy for Linda Gross and her legal team. This is a huge victory for all mesh harmed individuals!

  3. anna March 29, 2016 at 5:01 pm - Reply

    You waited so long, God bless you, and your family. It doesn’t bring you back what you lost physically, but a least you showed them who is the victim here.

  4. Finally March 29, 2016 at 5:18 pm - Reply

    Praise the Lord!! Let’s keep praying that the rest of us get our day!!

  5. K March 29, 2016 at 5:42 pm - Reply

    Adam Slater ROCKS!!! Congratulations Linda!! J&J this has been hell on all of us! Why keep fighting we are struggling and you need to stop and make this right!!!

  6. Bonnie March 29, 2016 at 5:52 pm - Reply

    I’m so happy she has won J&J can’t get away with this just because they think they’re gods & hide all the bad so they can look good ! So happy for you Linda you deserve it !

  7. Mary Pat March 29, 2016 at 6:31 pm - Reply

    How much has J&J spent on legal fees to defend this case? Now, if it goes to the Supreme Court, how much more will their defense cost? It would be interesting to chart the defense expenditures for all of the pharmaceutical companies.

  8. K March 29, 2016 at 7:22 pm - Reply

    Just searched the web to see who has reported on this and again it’s only Jane! Media hasn’t touched this!! Unbelievable!!

    • Jane Akre March 29, 2016 at 7:55 pm - Reply

      I wish that wasn’t true.

    • Bonnie April 1, 2016 at 1:27 pm - Reply

      K it is posted in NJ news Star Ledger & I think the other is Bloomberg News! I was happy to see that as its getting out there little by little. I know they all should share it like they do with J&J Shares!

  9. Don't give up March 29, 2016 at 7:29 pm - Reply

    This was an important case for J&J it was one of the first ones it took to long to get to this point should have been over with ages ago.
    Congrats Linda hopefully J&J can stop paying these lawyers as much as the mesh injured are winning it only makes sense settle J&J you will save a buck or two and help these poor women that have been injured by mesh

    • Jane Akre March 29, 2016 at 7:54 pm - Reply

      This is an extremely important case you are right…..the appeal decision goes a long way to knock out any opposition in the future I believe. It is precedent setting. Linda and Jeff are incredibly deserving!

  10. Scorned by mesh March 30, 2016 at 4:38 am - Reply

    I was implanted with this harmful product some years ago and just had a urethral diverticulectomy recurrent infections and constant pain congrats to you Linda I wish this process for myself would pick up the speed the company knows they need to pay but yet are dragging this entire process out

    • Anonymous March 30, 2016 at 8:53 am - Reply

      Scorned by mesh I understand where you are at as do so many women out here and what’s so sad is the amount of the settlements that are being offered is an absolute disgrace but when can we get these sent back to our state so we can have our day in court that’s what I’m asking how long do we have to wait for the judge to decide well nothing’s going to be settled in my court let’s send these back to the state courts it will be years and years and most of us will die before we ever see a penny that is the probably the saddest part of all of this unless you’re willing to take $40 or $20 thousand for all the pain and agony you’ve been through this is the worst time in women’s history and for so-called Justice in the United States of America shame on the courts shame on them manufacturers shame on the attorneys that are willing to sell their clients down the river I cry out and anger and in pain and no one listens

      • keith beard March 30, 2016 at 3:46 pm - Reply

        BLESS YOU. YOU ARE SO TRUE SOME OF US WILL DIE BEFORE WE GET OUR DAY. SO GLAD FOR LINDA SHE DESERVE HER DAY AND GOT IT HOPE EVERY THING TURNS OUT GOOD FOR YOU I HAVE HAD 5 SURGERIES AND SUFFERS EVERY DAY ..MARY

      • Scorned by mesh March 31, 2016 at 4:03 am - Reply

        This is ridiculous that we have to wait years an years to be compensated for this I wake up with pain every morning in pain I wonder if some of the new problems that I’m having are related to this mesh my relationship is going further in the drain I wonder what would these manufacturers say and do had this been one of there loved ones suffering from this messy mesh ordeal would they drag there feet and be so reluctant to pay my prayers and blessings are with all the women who are suffering

        • Anonymous March 31, 2016 at 11:48 am - Reply

          Your words echo my words and I see no light at the end of the tunnel at least with AMS

  11. Linda March 30, 2016 at 3:55 pm - Reply

    It’s a great verdict for all of us! For each win, we can all celebrate. Each woman implanted and suffering deserves this and slowly the truth is coming out. I am so looking forward to the case with 27 women. Days like this give us hope that justice will come!! The money does not fix women but it can help compensate for lost wages. I also believe J and J feels some pain with each award.

  12. ange March 30, 2016 at 6:13 pm - Reply

    hi what about us with proprolene mesh we are suffering also dr put a full sheet in to hold my intestines in and its failed , my bowell has collasped pain is horrific ..were do we go from here

    • Jane Akre March 30, 2016 at 7:10 pm - Reply

      Are you talking about hernia mesh? Bruce Rosenberg knows docs 954-701-5094. Keep trying, he is at a conference

      • LC March 31, 2016 at 10:53 am - Reply

        Hello Jane; is there a chance these cases can be returned to the state?

        • Jane Akre March 31, 2016 at 11:36 am - Reply

          Gross was heard in New Jersey state court…. it is over now and the final appeal decision is likely the last one. She is from South Dakota but the defendant company’s home is NJ.

  13. K March 30, 2016 at 7:18 pm - Reply

    Jane, thank you so much for all you do for us!!! Without you we would all be lost!!!

  14. Debi March 31, 2016 at 11:21 am - Reply

    I can’t help but think this is going to help in the Judge Goodwin trial. I am not sure but am hoping. Congratulations Linda……

    • Kitty March 31, 2016 at 11:39 pm - Reply

      From what I read of your skinny print Jane is Lida Gross WON supreme court
      It is over!! OMG. G-D is good. Thank u for your reporting.

      • Jane Akre April 1, 2016 at 11:59 am - Reply

        Sorry.. you can go to your computer and in the upper right hand corner there are three horizontal bars… hit that and increase the print size of all on your computer…. see if that works better.

        • Kitty April 1, 2016 at 2:14 pm - Reply

          Ok Jane. Thanks for everything

  15. Anon March 31, 2016 at 12:18 pm - Reply
  16. Scorned by mesh March 31, 2016 at 9:59 pm - Reply

    I’m awake now in pain restless unable to sleep mentally I’m exhausted with this entire ordeal I don’t think I will ever have a sexual relationship again this is torment I’m humiliated because I have to walk around with a pis bag on I’m so embarrassed when I go into public in my mind I’m wondering to I smell like urine very self conscience about having to wear this bag this mesh has opened an entire different chapter

  17. Carolyn January 16, 2018 at 11:58 am - Reply

    My adopted son is 7 years old. When he was 2, he had a fundoplication. Ethicon proline polypropylene mesh – product code PM II was used. That was 2012. He kept throwing up with a lot of mucus in 2015 and 2016. Dr went down his throat and found mesh had migrated into his esophagus. Dr said it would have to stay because it could not be removed. I took him to Vanderbilt Hospital in Nashville. They also did the endoscopic to look in his esophagus. The said the mesh could not be removed but they would have to cut out the part of the esophagus that the mesh was in. They found the mesh had grown into his stomach also so they had to cut part of the stomach out also. They had to bring up intestine to attach to his esophagus. His surgery lasted 12 hours. Our lawyer in Chattanooga Tn, where we live said, said after 6 months researching this that we did not have a case, because the best mesh was used in the surgery. BULLSHIT! No one wants to represent him. What can I do?

    • Jane Akre January 16, 2018 at 12:26 pm - Reply

      Very interesting story Carolyn. Since this is five years ago likely any statute of limitations has passed and besides, it was the standard of care. so how to address that? What is the attitude of the hospital? Are they willing to accept evidence that mesh migrates in the body? Might an executive or ethics panel within the hospital learn from your bad experience? We know no polypropylene is a “best mesh”….but I’d like to repost your question without your name on FB and see if others can add to their reports of mesh migration……The standard of care needs to be revised and revisited!

      • CAROLYN January 16, 2018 at 3:09 pm - Reply

        Thank you Jane! Erlanger Hospital told me that the mesh would have to stay. No surgery since the mesh could not be removed. I got a second opinion from Vanderbilt Hospital. They said the mesh could not just stay there because it would probably cause cancer. When surgery was done infection was already set up in his stomach. They had to remove his shunt tubbing that drains into his stomach and they had to place the tubbing on the outside of his body in his hospital bed to drain in a container in the bed. They said the infection could have gone to his brain and killed him.

        • Jane Akre January 16, 2018 at 8:30 pm - Reply

          Wow, did you ever get the two hospitals together so they could work out their differences of opinion…. interesting. What happened to Seth?

      • CAROLYN January 16, 2018 at 3:51 pm - Reply

        Jayne, Seth suffered with severe throwing up for 2 1/2 years. He had handfuls of mucus and milk in his throw up. I would take him to the emergency room all the time saying “something is wrong with my baby”. All the wanted to do was do a cat scan to see if his shunt was malfunctioning. The just shrugged it off. He kept losing weight. They were not concerned. When they hospitalized him for dehydration they finally went down his throat. That was in March of 2017. That was when they found the mesh. And told me it could not be removed. I went on Google and saw where mesh that migrates into the esophagus, the body sees the mesh as a foreign body, and makes extra mucus to try to expel it. So this has happened before to people. I was never told a mesh was used in his surgery. I became his foster mom when he was only 5 months old. He had the surgery when he was in foster care in my home. I got to adopt him later. Erlanger has never admitted any wrongdoing. Just saying they had never seen it before. Just showing that he meant nothing to them! It is just me and him in my home. I will turn 70 in September. So my whole life surrounds on him. I hate that this child had to suffer for so long, not knowing this mesh was causing him pain and misery. Now he will live the rest of his life like this. Why should mesh be used on anyone. They have known that it is dangerous and they continue to use it to make money. I am the voice of Seth.

        • Jane Akre January 16, 2018 at 8:29 pm - Reply

          How is he doing today?

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