A New Jersey state court jury on Monday said Johnson & Johnson should pay a South Dakota woman $3.35 million in compensatory damages and $7.76 million in punitive damages for failing to adequately warn her doctor of the potential dangers of a vaginal mesh implant made by the company’s Ethicon Inc. subsidiary, as well as for misrepresenting the product in brochures.
This was the first verdict among approximately 1,800 vaginal mesh cases pending in New Jersey against Ethicon and Johnson & Johnson (J&J), and could have an impact on thousands of lawsuits against other manufacturers of vaginal mesh implants.
The six-week trial took place in the Superior Court in Atlantic City, New Jersey. The jury was made up of a panel of six women and three men.
The lawsuit was filed in November 2008 by Linda Gross of South Dakota, alleging that J&J and Ethicon were liable, among other things, for “their defective design, manufacture, warnings and instructions” and that the Gyncare Prolift vaginal mesh was not safe.
In 2006, Gross underwent surgery for pelvic prolapse. She alleges that after the Gyncare Prolift was implanted, she suffered a variety of complications, including mesh erosion, scar tissue, inflammation and “neurologic compromise to…structures and tissue.”
Gross stated that she sought medical treatment and required 18 surgeries to repair the damage caused by the mesh.
Prior to being taken off the market in the U.S. last year, the Ethicon product was used to treat urinary incontinence and pelvic organ prolapse, a condition for which the plaintiff was treated in November 2008. Pelvic prolapse occurs when the tissues that hold the pelvic organs in place becomes weak, stretched or bulge into the vagina. There are different types of prolapse conditions, usually occurring after menopause, childbirth or hysterectomy.
The jury found that Ethicon had failed to provide an adequate warning to Linda Gross’s implanting surgeon, Dr. Benson. The jury further found that the company had made fraudulent representations to both Gross and Benson.
After the jury delivered its verdict, the judge went to her chambers to decide whether to allow a hearing on punitive damages. She was expected to decide that matter later today.
In Gross’ attorney’s plea to the jury, he urged the need to send a message to Johnson & Johnson: “Tell them through your verdict, don’t do this again, change your way of business. You’ve already found they knew what they were saying was untrue. When you make a punitive damage award and you want to deter them, you take into account how much money they have.”
About $185,000 of the $3.35 million jury award was allocated to Gross’s husband for loss of consortium. Loss of consortium is a legal term that refers to a situation where a person is deprived of the benefits of having a family relationship due to a negligent act of another person. The law provides an option to the victim of such a deprivation, to charge against the person whose negligent act led to the breakdown of victim’s family relationships. Compensation varies from one state to another. Loss of consortium is the inability of one’s spouse to have normal marital relations, or sexual intercourse. Such loss arises as a claim for damages when a spouse has been injured and cannot participate in sexual relations due to injury. The remainder of the award was to compensate Gross for her past and future pain, suffering medical costs and lost wages.
A 47-year-old former nurse, Gross testified that Ethicon’s Prolift vaginal mesh implant has rendered her unable to work, have sex with her husband, or sit comfortably for more than 20 minutes at a time. Gross also said that as a result of the Prolift mesh, she takes up to 20 medications a day and has undergone more than 400 medical encounters, including physical therapy, doctor visits and approximately 18 surgeries.
The jury viewed e-mails and videotaped deposition testimonies were replayed evidencing Ethicon Corp.’s repeated decisions to ignore reports of complications related to its Prolift vaginal mesh in a rush to get the mesh to market.
These big pharma companies cannot continue to put profits before patient safety. This is just the beginning of the lawsuits against Ethicon, with many vaginal mesh manufacturer lawsuits to follow.
Do you feel this was a fair award? Feel free to comment on this blog post. You can reach one of our Gacovino Lake attorneys at 1-800-246-HURT (4878).