J&J Transvaginal Mesh Case Update: Jury Awards $7.76 Million in Punitive Damages!
On February 27, 2013, a New Jersey jury awarded Linda Gross $7.76 million in punitive damages against defendants Johnson & Johnson and Ethicon; that is in addition to the $3.35 million in compensatory damages already awarded. This verdict came in response to Gross’ attorney encouraging the jury to find that Johnson & Johnson and Ethicon put profits over patient safety with their transvaginal surgical mesh, Prolift. “Tell them through your verdict, don’t do this again, change your way of business,” Gross’ attorney argued to the jury. “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.”
In response, Johnson & Johnson’s attorney, Christy Jones, reminded the jury of the heightened burden of proof required for a punitive damage award—a standard of clear and convincing evidence. “I asking you, I’m begging you, to think about what was done and why,” Jones said. “Please consider the burden of proof and hold the plaintiffs to their burden of proof. Please stand by your convictions and do what’s right. It’s important to all of us.”
Evidence showed that Johnson & Johnson’s net worth is estimated to be $64.8 billion through the end of 2012. According to Gross’ economic expert Tinari, the average annual profit between 2009 and 2012 was around $11.5 billion. Johnson & Johnson spent roughly $57 million a day on marketing and advertising in 2012.
Gross’ counsel showed the jury a variety of emails, memorandums, and video depositions, including the video deposition of Axel Arnaud, creator of Prolift. This evidence showed that the creator of the Prolift made statements that were contrary to Ethicon’s position that Prolift posed “rare and small risks” of harm. “I have given you 100 percent irrefutable proof that the guy who created the procedure is telling you those statements were not true,”
Gross’ attorney said. “This is clear and convincing. There’s no doubt. It’s their words.” Gross’s attorneys implored the jury to “provide justice today to Linda Gross and send a message to Johnson & Johnson and tell them ‘No more, no more, no more.’ Send a message and make sure it’s heard.”
Gross’s case is the second transvaginal mesh suit to reach a jury. Johnson & Johnson faces more than four thousand mesh lawsuits in the United States.