A New Jersey jury on February 25th returned a $3.35 million verdict against Johnson & Johnson in the first phase of a Transvaginal surgical mesh case. The jury found that the drug company failed to adequately warn the women’s doctor of the dangers of a vaginal mesh implant made by the company’s Ethicon subsidiary. The jury also found that the company misrepresented the product in brochures that it furnished to doctors.
This is the first verdict among some 1,800 vaginal mesh cases pending in New Jersey against Ethicon and J&J. This should have an impact on thousands of lawsuits against other manufacturers of vaginal mesh implants. The jury verdict in state Superior Court in Atlantic City, New Jersey, followed a six-week trial. The verdict in the first phase of the trial was only for compensatory damages.
The Ethicon product, before being taken off the U.S. market last year, was used to treat urinary incontinence and pelvic organ collapse, a condition for which Linda Gross, a nurse, was treated in November 2008. That condition happens when tissue that holds the pelvic organs in place is weak or stretched and bulges into the vagina. There are different types of this prolapse condition, which usually occurs after menopause, childbirth or a hysterectomy.
The lawsuit, tried in the court of Judge Carol Higbee, was brought by Ms. Gross, 47, of Watertown, South Dakota, in November 2008. She alleged that J&J and Ethicon were responsible, among other things, for “their defective design, manufacture, warnings and instructions” and that the Gyncare Prolift vaginal mesh was not safe.
Ms. Gross filed her lawsuit following a 2006 surgery to install a Gyncare Prolift for pelvic prolapse. She alleged the surgery led to a variety of complications, including mesh erosion, scar tissue, inflammation and “neurologic compromise to … structures and tissue.” Ms. Gross had to seek medical treatment and 18 operations to repair the damage caused by the mesh.
After the jury delivered its verdict in the first phase, the judge heard arguments on whether to allow the jury to decide on punitive damages. She sent that phase to the jury on February 26th. Since we had to send this issue to the printer on the 27th, and the jurors had been sent home for the day, we don’t know the outcome of the punitive damages phase. Based on the evidence presented, however, I believe the jurors will award punitive damages.
Ben Anderson, a lawyer from Cleveland and Adam Slater, a lawyer with the New Jersey firm Mazie Slater Katz & Freeman, represented Ms. Gross in her case. They did a very good job for her in the case. The verdict in this case, which I believe will include punitive damages in some amount, should send a very strong message to the companies manufacturing the mesh products. CLICK HERE to read a brief overview of this litigation.
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