Gross v. Johnson & Johnson – The Post-Trial Process

Mar 22nd, 2013 | By | Category: Legal News
Adam Slater

Adam Slater

March 22, 2013 ~ by ADAM SLATER  

Mr. Slater of Mazie, Slater Katz & Freeman LLC of Roseland, New Jersey recently represented plaintiff Linda Gross in her product liability lawsuit against Johnson & Johnson over its Prolift surgical mesh used to treat prolapse.  She was awarded  $3.35 in compensatory damages and $7.76 million in punitive damages. J&J is appealing.

The 9 jurors did not find Prolift was defective but found the company failed to offer an adequate warning and made a fraudulent misrepresentation about Prolift to Ms. Gross.

In this essay, he tells MDND readers what is next in the appeals process. Christy Jones of Butler Snow who represented J&J will be given the same opportunity to add her commentary.

      “The verdicts achieved at the culmination of Linda and Jeff Gross’s trial against J & J and Ethicon are the beginning of the post-trial process under New Jersey law.   The defense has already taken the first step, having filed a motion asking the Trial Judge to either enter Judgment for the defense or grant a new trial.  This is a motion made in virtually every complex civil case that goes to verdict, and in part preserves the defense’s right to make certain arguments on appeal.

      “Assuming we prevail on the post-trial motions, it is highly likely that the defendants will then file a notice of appeal to the New Jersey appeals court, known as the Appellate Division.   Based on my recent experience with multiple appeals in New Jersey, the appeal will be argued a year or more after the notice of appeal is filed by the defendants.   The decision will likely come out 3 to 6 months later.  The panel of Judges in the Appellate Division will be either two or three Judges, that is decided by the Court on its own.

      “Once the appeals court rules, the case could go to the New Jersey Supreme Court.  This happens in one of two ways.   If there is a dissent (a Judge who disagrees with the other Judges) in the appellate court, then there is an automatic right to appeal to the Supreme Court on that issue.   The other avenue to the Supreme Court is a petition for certification, in which a party files a brief attempting to convince the Supreme Court to accept one or more issues to be decided by the Supreme Court.   The Supreme Court then decides whether to accept the case, and it that occurs the process will be extended another year or more while the Supreme Court appeal runs its course (if that occurs).

      “The key to the appellate process is patience.  It will play out in the time frame set forth by the Courts.   We feel very strongly that the verdicts should be affirmed on appeal, and pursuant to New Jersey law the entire verdict is accumulating interest and will continue to do so until the end.   At the same time, we are pushing forward with more discovery, more depositions, and scheduling the next trial (hopefully sooner rather than later but this depends on the Judge’s schedule).

      “I hope this short outline is helpful to answer any questions one might have about the appellate process.  I would also like to thank you Jane for your tireless efforts to get important information to those who need it, and everyone for your heartfelt support and good wishes throughout the trial.  I know it means a lot to Linda and Jeff, and to myself and the entire trial team.”

Adam Slater

Adam Slater

Adam Slater, Esq.

Lead trial counsel, Gross v. J & J/Ethicon

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6 Comments to “Gross v. Johnson & Johnson – The Post-Trial Process”

  1. Kathleen says:

    I am disappointed with how long the court system is going to take to give Linda Gross justice. Which is a far cry from getting her life back. Even though she’ll get interest, she and most meshies need the money now to take care of our health. It is so sad how drawn out everything is with our government – except when putting a non-tested medical device on the market. Of course, that should be quick!! Yes sarcasm.

  2. LaRue says:

    But what about other cases pending in the NJ MDL? After the unfavorable verdict, has Ethicon showed any interest in settling other cases in this group??

    • Lana Keeton says:

      The verdict was not strong enough for J&J – Ethicon to make them interested in settling other cases. Mazie Katz DID NOT PROVE design defect. Only that Linda and her doctor were not properly warned. Every case coming behind it will have to individually prove the same thing. It was a big verdict for a lot of money but not for the reasons which will make J&J want to settle. If Mazie Katz is putting on the next trial, you can expect the same thing. Where was the scientific evidence? This is the best Mazie Katz, and all those other high powered attorney firms working with them, had after working on this case for over 5 years.

    • Jim says:

      No Larue they haven’t, and yes they will continue forward on lawsuits according to Mr. Slater. Cases are being put together so the can keep going. There is a case set for June in WV, Charleston.

  3. I would rather purchase a toaster oven where I have adequate information about quality/value/safety/effectiveness and a warranty in the case of product failure. The medical device industry entitlements are in direct opposition to patient protections. Delay of justice is denial of justice for these harmed women (and families) that have been permanently damaged by devices and now financial impoverishment is imposed, too. US citizens pay through CMS (Medicare, Medicaid) and provide a safety net through other community programs. The medical device industry and hospitals are banking on growing profit at our expense.
    Don’t get me wrong: I am thrilled when Linda Gross and other heroines prevail in court. I just think that a device failure should mean immediate coverage/compensation for the harmed patient and that the ‘other’ stakeholders should fight it out in court – manufacturer, sales force, legislator, regulator, hospital, designer, surgeon. Reduction in product failures would be pursued as a logical strategic business goal.

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We hope you find this a helpful resource. National News Editor, Jane Akre, began MDND with the hope of providing the latest news, information and perspective from the regulatory, industry and patient point of view, something that goes under-reported in much of the coverage of medical devices. The public is just now becoming aware that many devices do not undergo the same scrutiny as prescription drugs and are instead grandfathered in under an FDA loophole that has gone largely unchanged since the 1970s. As a result, patients become the post-market clinical trial subjects, and many suffer devastating and permanent injuries.