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Linda Gross $11.1 Mill Jury Verdict Survives Final J&J Challenge

Linda Gross in NJ trial, Feb 2013

Mesh Medical Device News Desk, December 6, 2016 ~ J&J appeal to the New Jersey Supreme Court has been rejected for consideration. It was the last appeal for Johnson & Johnson. 

It was February 2013 when South Dakota nurse, Linda Gross was awarded $11.1 by an Atlantic City New Jersey jury after a seven-week trial.

Ms. Gross alleged the Prolift Pelvic Floor Repair System, she received to treat pelvic organ prolapse, caused her permanent damage and the jury agreed.

J&J, maker of the Prolift and its subsidiary, Ethicon immediately appealed.

In March of this year a state appeals court upheld the jury award. J&J took the issue to the highest court in New Jersey. It’s been three years, but on Monday, the New Jersey Supreme Court declined to second-guess the case of Gross v. Gynecare.

Adam Slater, Mazie Slater Katz Freeman

“I’m happiest for Linda and Jeff who have sacrificed so much and are heroes as far as I am concerned. This decision will help the thousands of women who are still fighting this fight with us in the Courts,” said Ms. Gross attorney Adam Slater to MND this evening.

Theoretically, J&J can file another motion for the high court to rehear and reconsider the denial.

The state Supreme Court will generally only consider a Petition for Certification if there are conflicted rulings in the lower court.

In an appeal filed after trial, J&J argued that the lower court failed to apply the learned intermediary doctrine to the fraud or deceit claim. The learned intermediary is the doctor who is supposed to inform a patient about all risks and benefits of a medical device.  He doctor then has the burden to warn the patient about risks, not manufacturer J&J.

The company also argued the trial court mistakenly allowed the jury to consider punitive damages.

The jury found Prolift was not defectively designed and that the defendants did not provide adequate warning to the implanting surgeon, Dr. Kevin Benson.

New Jersey Law Journal reports on Dec 7, Ethicon spokeswoman Kristen Wallace issued a statement on behalf of the defendants.

“We are disappointed that the Supreme Court of New Jersey has denied the petition for certification and will not be considering the important issues we raised,” Wallace said. “We believe Ethicon acted appropriately and responsibly in the research, development and marketing of the Prolift pelvic organ prolapse repair kit,” the company statement said. “We empathize with all women suffering from pelvic organ prolapse, which can be a serious and debilitating condition, and we are always concerned when a patient experiences adverse medical events. We have always made patient safety a top priority and will continue to do so.”

MONETARY AMOUNTS

What the court awarded Ms. Gross was:  

Past pain and future pain of suffering, disability loss of enjoyment of life  $1.1 million.

For her past wages  $180,000.

For her future wages $500,000.

For the reasonable value of past medical services  $385,000.

For the reasonable cost of future medical treatment and household services $1 million.

Compensation to Jeff Gross $185,000 for loss of the companionship of his wife.

After additional proceedings, the jury awarded $7.76 million in punitive damages.

 

Prolift kit

BACKGROUND

The Prolift Pelvic Floor system was an innovative new transvaginal mesh that for the first time would be sold pre-cut in a kit with hook like trocars of metal implanting devices.

Made by Ethicon, the medical device division of Johnson & Johnson, Prolift would use the Gynemesh soft prolene (PS) used for hernia repair.

Gynecare, Prolift (J&J)

During the trial jurors saw that the marketing team always worked closely with Research & Development and Regulatory Affairs with a targeted March 2005 launch date.  The date was important. Ethicon wanted to take advantage of the market and beat out the upcoming competition and charge a “premium price” for the Prolift, according to internal company records.

But as late as January 2005 the launch team was hearing from its French scientists who developed the TVM procedure (how to use new tools to place the mesh).  Evidence at trial showed the team suggested a different type of mesh be used to replace the Gynemesh because early indications on cadaver and animal testing showed a 21 percent and higher complication rate with Gynemesh placed in the pelvis.

Gynemesh was called the “worst of a bad lot” of meshes and some inside the company thought it caused too many complications.

Ms. Gross who had worked as a hospice nurse, is now unable to sit any more than 20 minutes. She has to self-catheterize in order to urinate and has chronic pain in her legs and pelvis. She has undergone more than 20 mesh removal operations and hundreds of doctors consults since the Prolift was implanted in July 2006.

In mid 2012, Ethicon decided to remove Prolift and three other transvaginal meshes from the market in a phased stages over 18 months.

Only one other jury trial award has been paid, that in the case of  Ms. C. Scott v C.R. Bard. Her $5.5 million judgment was paid after Bard exhausted the appeals process.    ###

Prolift on eBay July 2013

Prolift explant

20 Comments

  1. “Time wounds all heels” as John Lennon said…hoping this is a real victory and J & J loses this important appeal…bless Ms.Gross

  2. Robin says:

    I am so happy for Linda and her husband. Now maybe we can move forward in justice for all!

  3. Sue says:

    I lost my abiliTy to continue working,after my surgery in 2004 but I have been told that because I live in Idaho the statue of limitations is 2 years. It’s heartbreaking

    • Anon says:

      Sue your time begins when you realize what’s causing your problems…..example: implanted in 2006 realized in 2011 that mesh was causing your problems, you have 2 years from 2011 to file. I hope this help.

  4. Lisa says:

    I hope this is the beginning of cases being settled. I have been unable to walk, sit for more than about an hour, have sex with my husband or play with my grandsons since I had a tvt operation using Johnson and Johnson mesh kit in 2010. I have developed several auto immune diseases and my life is ruined. My husband had to give up his job to care for me and our children and our lives have never been the same. They need to admit that an error was made and stop calling us liars there are too many of us. ” meshies” for them to sweep ir under the carpet because we will be heard

  5. Linda says:

    Today, a step forward! Hopefully we don’t have the usually steps back. It’s time for closure.

  6. anon says:

    The other attorneys in too big of a hurry pushed for a final J&J settlement too soon. Pennies on the dollar for mesh victims.

    Patience is virtue. They should have waited on this appeal to come down from the court.

  7. Shannon says:

    Sounds like aa holiday blessing we wish her well and may her funds come swiftly and all walls in her way be torn down. Amen

  8. Lordhelpus says:

    Finally she’s been recompensed for all the horrible harm and suffering they’ve caused her, I still feel they’re all criminals who are getting off scott-free.

  9. Beatrice says:

    I am happy for her but the rest of us we wait for our justice and our lives are worth just as much as hers . how many judges do we have to go through? Most of us will never see the inside of a court room but were told that we matter after almost 5 years you stop believing you will ever see justice. I am truly happy for Linda and God Bless Her but we still wait for our turn to get justice.

  10. Still Standing says:

    Beatrice, I have read your post several times. There is so much painful emotion in your short post and I want to give some words of encouragement. Our worth cannot and will not be defined by the capricious assignment of a monetary award or mesh settlement. I know that is hard to feel when you are in pain and needing financial help. However, please dont shoot arrows at yourself by questioning how much you are worth because you have not received compentstion. Mesh has taken many things from us, but I it will not ever make us less worthy or unworthy. Thinking in this way not only adds more emotional pain, but the words we say to ourselves can also increase our physical pain. Your worth does not come from a mesh maker. It comes from a much higher power. We need to remember that from time to time although that is hard to do when life seems so unfair.

  11. Anon says:

    Adam Slater is our hero…the giant slayer. He is one of the attorneys that is compassionately fighting this war with us. This is the case that gave me my wings. Great News!

  12. Debbie M says:

    I have been part of a class action suit for this type of procedure. They are asking me to accept $10,000 as a settlement. I, too, have experienced the loss of a social life, and physical problems. I cannot ever get back those years. The lawyers will take 40% off the top of the $10,000. Then, the participants in this suit must wait an indefinite amount of time to see if there are any leans imposed by the insurance companies. My guess is that I will never see a dime. I haven’t signed because I am so depressed about it that I don’t see the point. If I settle, then basically, the company is not having to admit any fault. That is just wrong. I actually had to ask if whatever tiny amount of money I finally received would be taxed. The secretary for the law firm explained that it was not considered income. I haven’t decided if I will settle. I don’t see the advantage other than I am helping this company make this problem go away for them.

    • Jane Akre says:

      Debbie- You do not have to accept that amount, you do have options. I’m not a lawyer but I understand you can ask for another assessment of your case. You can fire your law firm, but to find another firm you need to have had a number of removal surgeries, which puts you in a higher tier of injury. Unfortunately that is the way it is being quantified, whether that is fair or not. If you have pudendal nerve damage there are other options as well.

  13. Pam says:

    Kudos to that couple awesome
    I can’t help to think when the rest will see our day in court or our attorneys
    Don’t want to be the bearer of bad news but I keep on reading article after article all the other cases of being bunched together in our settlements are going to be between 30 and 60000 without lawyer fees I have tried to contact my lawyer on this issue with no results evidently it must be true I am not settling for 60000 that is BS

    • Still Standing says:

      All of the settlements appear to be categorized according to the number of surgeries that resulted from the implanted mesh. Each mesh manufacturer has its own guidelines, so those who have AMS or J&J or another company will be placed on that injury tier. These tiers differ from manufacturer to manufacturer. Small amount for product in place with medical management, 1surgery, 2 surgeries, three surgeries and 4 or more. These ranges can be from 10,000 or so and go up toward $500,000, so there is a wide range. I personally know this. Additionally, each law firm negotiates the settlement to their clients. Firms with more plaintiffs have better negotiating power. Also, more experienced firms probably do better . You must remember that you do have an individual suit filed and You can make that settlement decision. However, before you reject it, be sure to ask your attorney what he or she thinks is the true value of your case. This should be a significant part of your decision

  14. Henrietta says:

    My life has been changed forever. I’m going through a divorce due to consortium. I had to leave school. Can’t really work. Constant infections and unable to have a sex life. I’ve lost everything and I’m homeless with two young children. My once promising future is over. I don’t understand how they can get away with this abuse and for so long. I just want to get on with my life and take care of my family. And hopefully one day be able to be in a loving relationship.

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