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Shezad Malik MD JD
Shezad Malik MD JD
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J&J Ethicon Subjected to Punitives in Vaginal Mesh Verdict

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We reported yesterday the New Jersey trial verdict involving a woman who was injured by a J&J vaginal mesh product. The New Jersey jury began deliberating today to punish Johnson & Johnson's Ethicon subsidiary for gross negligence for their medical mesh that caused severe personal injuries to a South Dakota nurse. The plaintiff, Linda Gross was awarded $3.35 million yesterday in the first trial involving 2,100 New Jersey lawsuits over its vaginal mesh.

It was the first verdict among some 2,100 vaginal mesh cases pending in New Jersey against Ethicon and Johnson & Johnson, and it could affect thousands of lawsuits against other manufacturers of similar products. Linda Gross's attorneys asked jurors to require J&J, the world’s largest seller of health-care products, to pay punitive damages. The jury panel awarded compensatory damages to Gross after finding J&J failed to warn her surgeon of the risks of its Gynecare Prolift implant and fraudulently misled her about the risks.

Punitive Award can be as high as $16.75M

New Jersey caps punitive damages at five times compensatory damages, or $16.75 million. Gross attorney Adam Slater urged the jury panel to find that J&J and its Ethicon subsidiary acted with willful and wanton disregard of the probable harm to his client.

Plaintiff Gross was badly injured

Gross, 47, filed a lawsuit complaining of constant pain and 18 operations she had to undergo after the medical mesh device was implanted to buttress weakened pelvic muscles. J&J, is in New Brunswick, New Jersey, and they claimed at trial that Prolift is safe and effective, and the company warned adequately of risks.

The Ethicon product, before being taken off the American market last year, was used to treat pelvic organ collapse, a condition for which the plaintiff, a nurse, was treated in November 2008. That condition occurs when tissue that holds the pelvic organs in place is weak or stretched and bulges into the vagina.

Gross’s attorneys called a forensic economics expert, Frank Tinari, to testify about J&J’s financial condition. According to Tinari, J&J had total assets of $121.3 billion and a net worth of $64.8 billion through Dec. 31. The average annual profit from 2009 to 2012 was $11.5 billion. Advertising and marketing expenses were $20.9 billion last year, or $57 million a day. Tinari said that every 45 minutes, the company spends the equivalent of the $3.35 million awarded to Gross on marketing and advertising.

Gross attorney said, “Provide justice today to Linda Gross and send a message to Johnson & Johnson and tell them No more, no more, no more.” “Send a message and make sure it’s heard.” The Gross lawsuit is the second product liability lawsuit over vaginal mesh products to reach a jury, with a California state court jury awarding $5.5 million in the first mesh trial in July 2012, involving problems with a Bard Avaulta Pelvic Mesh product.

J&J Faces 4,000 Pelvic Mesh U.S. lawsuits

The case is Gross v. Gynecare Inc., Atl-L-6966-10, Superior Court of Atlantic County, New Jersey (Atlantic City).
In addition, another 2,000 complaints filed in U.S. District Courts throughout the country have been consolidated in the federal court system as part of an MDL, or multidistrict litigation, which is centralized before U.S. District Judge Goodwin in the Southern District of West Virginia.

Judge Goodwin is also presiding over the consolidated pre-trial proceedings in four other vaginal mesh MDLs, each involving similar transvaginal mesh products manufactured by different companies, including C.R. Bard, American Medical Systems (AMS), Boston Scientific and Coloplast Corp.