As predicted in the March issue, the jury in the Gross case returned a $7.76 million punitive damages award against the Ethicon Endo-Surgery Inc. subsidiary of Johnson & Johnson. The award came in the second phase of the trial in the case. This amount is in addition to the $3.35 million awarded in the first phase as compensatory damages. As we reported in the March issue, this is the first pelvic mesh trial in the New Jersey court and it had been labeled a “bellwether trial.”
Mrs. Gross suffered extraordinary injuries as a result of the implanted mesh, ultimately undergoing 18 revision surgeries in an effort to remove the mesh after it began to erode and break down in her body. Mrs. Gross has experienced and continues to suffer from chronic pelvic pain, permanent incontinence, and permanent dyspareunia (painful intercourse) as a result of the implant. Mrs. Gross will continue to suffer from these conditions for the remainder of her life.
The jurors found that Johnson & Johnson failed to provide adequate warnings of the dangers of the Prolift to Mrs. Gross’s physician and misrepresented the product in product brochures. The jury awarded Mrs. Gross and her husband $3.35 million to compensate her for her past and future pain and suffering.
At the time the Prolift was implanted in Mrs. Gross, Johnson & Johnson was marketing the product without FDA approval or testing in patients. Even though Johnson & Johnson was aware of the problems caused by the Prolift, the company deliberately failed to provide adequate warnings and fraudulently misrepresented the risks of the product. After hearing evidence of Johnson & Johnson’s deliberate disregard of patient safety, the jury awarded Mrs. Gross and her husband punitive damages in the second phase. Punitive damages are awarded to punish the conduct of Defendants who intentionally disregard the safety of others and to deter them from such conduct in the future.
Johnson & Johnson removed the Prolift from the market in 2012. The company has assets of $121.3 billion and a net worth of $64.8 billion. Johnson & Johnson spent more than $20 billion last year in advertising alone, approximately $57 million per day. Approximately every 45 minutes, Johnson & Johnson spends the equivalent of the $3.35 million dollar verdict awarded to Mrs. Gross on advertising for its products.
There are more than 1,800 cases pending in New Jersey state court against Johnson & Johnson. Approximately 2,200 cases are pending against Johnson & Johnson in the federal multidistrict litigation in the United States District Court for the Southern District of West Virginia. In addition to cases filed against Johnson & Johnson, cases involving similarly defective transvaginal mesh products have been filed against American Medical Systems, Bard, Boston Scientific, Coloplast, Caldera, and Cook Medical. More than 14,000 claims are currently pending throughout the country in state and federal courts. The next trial will take place in July in the multidistrict litigation in West Virginia against Bard.
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