Atlantic City Jury Awards South Dakota Nurse $11.1 Million Over Ethicon Vaginal Mesh Implant

On July 13, 2006, Linda Gross, a registered nurse from Watertown, South Dakota, had a Gynecare Prolift Pelvic Floor Repair System implanted to treat pelvic organ prolapse. The Prolift is a polypropylene mesh placed through the vagina to support weakened pelvic muscles, designed, manufactured and marketed by Ethicon, Inc., a Johnson & Johnson subsidiary. Gross alleged the mesh caused erosion, scar tissue, inflammation and nerve damage in the surrounding tissue, and that Ethicon never adequately warned her or her implanting physician of those risks before the surgery.

In the years that followed, Gross had 18 operations to repair the damage, including procedures that found and removed mesh, and was left with chronic pelvic pain, urinary retention and pudendal neuralgia. Her family physician testified at trial that she had undergone 22 surgical procedures since the implant, nine of which found mesh. She and her husband, Jeffrey Gross, sued Ethicon and Johnson & Johnson in New Jersey, where all state court pelvic mesh litigation had been centralized in Atlantic County and roughly 1,800 similar claims against the companies were pending. Theirs was the first case in that coordinated proceeding to reach a jury.

The trial ran from January 7 to February 25, 2013 before Judge Carol Higbee in the Superior Court of New Jersey, Law Division, Atlantic County. South Dakota law governed the substantive claims; New Jersey law governed procedure and the punitive damages claim. On February 25, 2013 the jury rejected the claim that the Prolift was defectively designed, but found that Ethicon and Johnson & Johnson had failed to give Gross's implanting surgeon adequate warnings, that the failure was a proximate cause of her injuries, and that the companies had made a fraudulent misrepresentation to Gross herself that also caused her injuries. It awarded $3.35 million in compensatory damages to Linda and Jeffrey Gross. The punitive phase began the next day, and on February 28, 2013 the jury added $7.76 million under New Jersey's Punitive Damages Act, which requires clear and convincing proof of actual malice or wanton and willful disregard. That brought the total verdict to $11.1 million. Final judgment was entered on July 2, 2013, and the trial judge denied the companies' motions for judgment notwithstanding the verdict, a new trial and remittitur on July 15, 2014.

Ethicon and Johnson & Johnson appealed. Mazie Slater Katz & Freeman represented the Grosses on appeal: Adam M. Slater argued the case, with David A. Mazie of counsel and David M. Estes also on the brief. On March 29, 2016, the Appellate Division affirmed in an unpublished per curiam opinion, rejecting the companies' arguments on the learned intermediary doctrine, causation, evidence rulings and punitive damages, and noting that the companies had not argued the punitive award was excessive. Johnson & Johnson then petitioned the New Jersey Supreme Court. On December 5, 2016, the Court denied certification, closing off further review and leaving the $11.1 million verdict as the final judgment.

It was the first case tried in New Jersey's coordinated pelvic mesh proceeding, and the verdict survived both levels of appellate review at a time when thousands of additional transvaginal mesh claims remained pending against the companies in state and federal courts.