By Starkeisha Tucker
A New Jersey appeals court affirmed an $11 million award to a woman who claimed a defective vaginal mesh product produced by Johnson & Johnson caused unbearable nerve pain.
The company was aware that the Prolift vaginal mesh could disintegrate in the vaginal wall and cause pain from the mesh arms. A French physician had notified the company of the defect before marketing materials were sent to doctors across the country. However Johnson & Johnson decided not to add the warnings to the label because the printing job was already at the printer.
J&J is also under fired in MDL 2327, supervised by US District Judge Judge Joseph R. Goodwin in the Southern District of West Virginia.
The plaintiff, Linda Gross, had the Prolift product inserted in 2006. Her doctor described her reaction to the mesh as catastrophic.
Within two months of the surgery Gross complained of pelvic pain. After six months with the mesh, the doctor performed a second surgery to remove the mesh and found a “wrinkled bulge” and discovered that the mesh had shrunk overtime.
Physician Kevin Benson testified he trusted Johnson & Johnson to provide fair, balanced, and truthful information about Prolift. He further testified that he would not have recommended the procedure had the additional warnings were present.
Gross continued to suffer complications even after multiple surgeries for the mesh. She was unable to have an intimate relationship with her husband, lost her job as a nurse, and suffers from severe depression and anxiety.
On appeal, the defendant argued that under the learned intermediary doctrine, the lower court erred by:
- Failing to bar Gross’ claim for deceit as a matter of law; and
- Misapplying the learned intermediary doctrine to the failure to warn claim.
Learned Intermediary Doctrine
The learned intermediary doctrine imposes a duty on a manufacturer to warn physicians of any risks involved with its products. The physician becomes the intermediary between the manufacturer and communicates warnings to patients.
The purpose of the doctrine is to allow patients to make well-informed decisions and balance the benefits against the risk of procedures. Johnson & Johnson failed to notify the physicians of the issues until years after Gross sustained complications from the mesh.
Regarding J&J’s claim of deceit, the court stated the plaintiff is required to prove the manufacturer intentionally concealed or misrepresented of a fact which the plaintiff would rely and caused the injury.
Johnson & Johnson staff testified it was aware of the risk and issues with the Prolift before it went onto the market. But, the risk were ignored because it believed surgeons were responsible for fixing the issues.
However, the impetus to have the product on the market and reluctance to reprint marketing materials was more important. The court held there was sufficient evidence to show Johnson & Johnson failed to inform physicians and the intermediary doctrine does not bar the deceit claim.
Failure to Warn Claim
The defendant argued the lower court erred in its jury instruction for the failure to warn claim. Johnson & Johnson stated the instructions allowed the jury to find causation based on reading the patient brochure.
There were multiple opportunities for the jury to make inferences that course of treatment for Gross would have been altered had appropriate warnings were provided.
The opinion states that Benson relied on the pamphlets and instructions for use provided with the mesh kits. Gross herself testified if all the risks, including information about multiple surgeries, chronic pain, and difficulty of removal was present, she would have declined the surgery.
The three-judge panel disagreed with the defense argument and ruled the plaintiff presented enough evidence for the jury to determine an inadequate warning was provided. The appeal was heard by Judges Fisher, Espinosa and Rothstadt. Charles Lifland (O’Melveny & Myers LLP) of the California bar, admitted pro hac vice, argued the cause for appellant. Adam M. Slater argued for respondents (Mazie Slater Katz & Freeman, LLC, attorneys.
This case is Linda Gross and Jeffrey Gross v. Gynecare, Ethicon Inc, and Johnson & Johnson, Case No. A-0011-14T2, Superior Court of New Jersey