J&J Transvaginal Mesh Case: Jury Returns with $11.1 Million Verdict

In November 2008, Linda Gross, a South Dakota woman, filed a lawsuit against Johnson & Johnson and their subsidiary Ethicon for injuries she sustained as a result of the use of their Prolift transvaginal mesh device. The suit alleged that the company failed to warn her doctor of the product’s potential dangers. It also claimed that J&J and Ethicon were liable for fraudulent misrepresentation and “defective design, manufacture, warnings and instructions." At trial earlier this year, Gross’s attorneys urged the jury: “Make sure you punish them for not telling the truth. Make sure you deter and discourage.” After 13 days of deliberation, a New Jersey jury awarded Gross $3.35 million in compensatory damages for her injuries. Three days later, the panel returned with an additional $7.76 million in punitive damages. This is the first verdict in one of 4,000 lawsuits concerning J&J’s Prolift device, including 1,800 in New Jersey alone.

J&J admits that they could have done a better job and “fell short” when it came to warning potential users of the risks.

The jury found that J&J and its Ethicon unit failed to adequately warn Gross and her surgeon about the risks of the device. The panel, after determining that J&J deliberately misled Gross [and others] about the risk, penalized the company with a punitive award worth $7.76 million. J&J plans to appeal this award, along with the February 25th $3.35 million compensatory award. J&J claims that “the punitive damage award is unsupported by the evidence at trial” and that the company “hadn’t acted with wanton and willful disregard to Gross, the legal standard required for punitive damages.” J&J admits that they could have done a better job and “fell short” when it came to warning potential users of the risks, but are adamant that the punitive and compensatory damages are excessive and unwarranted.

Gross’s attorney, in contrast, said the evidence at trial clearly supported the awards. J&J’s financial records show that the company could spend the equivalent of Gross’s compensatory award of $3.35 million in a mere 45 minutes on marketing and advertising for the product. J&J company documents showed a $5.6 million profit on the Prolift device between 2005 and 2012. Also in support of the award, emails, depositions, and company memos, including one from Prolift’s designer Axel Arnaud, disputed Ethicon’s claim that the Prolift could pose “rare and small risks” of complications. J&J was also alleged to have taught surgeons, including one who testified on their behalf at trial, how to “minimize the risk to patients” and to look through “the instructions for use” for warnings of potential risks.

J&J closed at trial by “begging” the jury to side with them, claiming the evidence did not show that “J&J or Ethicon did not care about hurting women…and that’s what the charge is.” Gross’s lead attorney closed by noting that the defendants resorted to begging the jury for mercy, while reminding them that “every single day Linda Gross begs to be out of the prison that she’s in of pain and all the things that have happened to her.” Another of Gross’s attorneys explained that it was the jury’s duty to send a “loud message” to a “big giant,” punish the company for its wrongdoing, and prevent them from continuing this type of behavior.