J &J Seeks to Avoid Getting Hit with Punitive Damages

After Johnson & Johnson lost the first vaginal mesh device trial, the company is now seeking to avoid punitive damages.  The plaintiff, Linda Gross, was awarded $3.35 million by the jury. In the lawsuit you can see what pains Ms. Gross went through.

According to an article by David Voreacos in Bloomberg, Gross’ attorneys now are asking the jurors in Atlantic City on the first vaginal mesh implant trial to punish Johnson & Johnson by paying punitive damages.  The initial amount awarded to Mrs. Gross was compensatory damages.  The jury awarded Mrs. Gross this amount after they found that Johnson & Johnson failed to warn Mrs. Gross’ surgeon of the risks of the company’s Gynecare Prolift vaginal mesh implant device and misled her about the risks.

Mrs. Gross sued Johnson & Johnson along with her husband after receiving the vaginal mesh implant device.  She went through 18 operations after the initial device was implanted and she experienced great pain and weakened pelvic muscles.

In this case, the cap for punitive damages that the jury can award Mrs. Gross is $16.75 million.  According to New Jersey law, caps on punitive damages are at five times the compensatory damages awarded.  However, when jurors are deliberating on whether punitive damages should be awarded, they are not told about this cap.

Mrs. Gross’s attorney, Adam Slater, told the jury of six women and three men: “Tell them through your verdict, don’t do this again, change your way of business.  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.”

Johnson & Johnson’s attorney, Christy Jones, said, “I understand that Johnson & Johnson and Ethicon didn’t do as good a job as they could have.  I understand they could have given better warnings.”  However, in light of this, she asked the jurors to look at the burden for finding punitive damages.  The burden is clear and convincing evidence, not by a preponderance of the evidence, which is the standard for finding compensatory damages.

Throughout this trial, Gross’ attorneys called a forensic economics expert, Frank Tinari.  Mr. Tinari testified about Johnson & Johnson’s financial condition.  He told the jury that Johnson & Johnson had total assets of $121.3 billion and a net worth of $64.8 billion.  The company’s annual profit from 2009 to 2012 was about $11.5 billion.

Gross’ other attorney, David Mazie, called Johnson & Johnson a “big giant” and urged jurors to send a “loud message” in order to punish the company for its conduct.

What do you think?

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