By refusing to hear an appeal from Ethicon, Inc., a unit of Johnson & Johnson, the New Jersey Supreme Court upheld an $11.11 million verdict that the companies failed to give sufficient warnings that their Gyncare Prolift mesh product would cause debilitating nerve pain.
A New Jersey Superior Court Jury returned the verdict in Feb. 2013 in a bellwether trial in the state’s multi-county litigation docket. Trial Judge Carol E. Higbee had denied defense post-trial motions, ruling that there was sufficient evidence that the company was responsible for the plaintiff’s injuries.
Ruling strengthens cases
“This case now establishes certain key legal rulings are binding, including the propriety of punitive damages, which strengthens every case in this litigation,” Adam M. Slater of Mazie Slater Katz & Freeman LLC told Law360. The jury awarded $3.35 million in compensatory damages and $7.76 million in punitive damages
- Ethicon is also the target of 31,752 product liability lawsuits in federal MDL 2327 before US District Judge Joseph R. Goodwin, IN RE: Ethicon, Inc., Pelvic Repair System Products Liability Litigation.
- Further, a large number of lawsuits are expected to be filed resulting from injuries alleged to be caused by Ethicon Physiomesh. It is probable that a motion to consolidate will be filed before the Judicial Panel on Multidistrict Litigation (JPML). Given the fact that Ethicon has recalled the Physiomesh product line, this litigation may move rapidly. It is possible that an MDL could be formed as early as 2017.
Linda Gross filed the New Jersey case in 2008 after having the Gynecare Prolift implanted in 2006. She had 18 subsequent surgeries to remove the mesh after she said the product caused severe nerve pain that ended her nursing career and prevented her from enjoying time with her family or from having a normal sex life. Gross v. Gynecare Inc., case number Atl-L-6966-10, New Jersey Superior Court, Atlantic County.
“The evidence was sufficient to allow the jury to find an adequate warning would have prevented plaintiff’s injuries,” a panel of the state appeals court wrote on March 29, upholding the verdict. Ethicon stopped selling the product in 2012.
The appeals panel agreed with the judge, noting the doctor’s testimony that he would have counseled against the procedure or spent at least 45 minutes discussing its drawbacks if he had known it “should not be implanted in sexually active people.”
“The judge also relied on plaintiff’s testimony that she would not have selected the Prolift option if she had known of the risks and recognized there was overwhelming evidence to show the company had information about Prolift that it chose not to provide to the physician,” the panel wrote.