Day 29: Linda Gross v. Ethicon Punitive Phase: Wanton & Willful Conduct?

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February 26, 2013~ An attorney for Johnson & Johnson begged the jury today not to award punitive damages in the Linda Gross v. Ethicon trial that could amount to $20 million.

Judge Carol Higbee reminded the nine jurors, who returned for this final phase of the 29 day trial, that the standard must be clear and convincing evidence that the harm suffered by Linda Gross was the result of acts or omissions by the healthcare giant, accompanied by a wanton and willful disregard of the patient. The company would have had to know the acts or omissions had a high probability of harm but showed reckless indifference to the consequences.

A punitive award is intended to discourage egregious behavior in the future. Jurors also have the option not to award punitive damages when they reconvene Wednesday morning.

Linda Gross

Jurors on Monday awarded Linda and Jeff Gross $3.35 million in compensatory damages for the harm she suffered after being implanted with the Prolift transvaginal mesh. Specifically, the jurors found Ethicon, a division of J&J, failed to properly warn of the risks of vaginal mesh and made fraudulent misrepresentation to Ms. Gross, 47, a South Dakota nurse, who sued the company.

Christy Jones, the attorney for Ethicon asked the jury to not further punish the company beyond yesterday's award.

Jones spoke softly with many pauses when she told jurors the company cared about women's health and did not act with wanton and willful disregard of the consequences, a higher standard to prove then the preponderance of the evidence standard for compensatory damages.

"I'm asking you, I'm begging you to think about what was done and why," she said pleading and bending forward to the jurors.

"I understand you have said we have fallen short but I ask you to think about the fact, that is completely different from saying we should be punished because we deliberately acted or failed to act with reckless indifference of the consequences," she said.

WORTH OF THE COMPANY

Evidence was presented by both sides about the value of Johnson & Johnson and its various healthcare divisions.

Frank Tinari PhD, Economist

Economist Dr. Frank Tinari was brought back to the stand where he showed the total assets of J&J and its 250 divisions at $121.3 billion with a net worth in 2012 of $64.8 billion.

"Take one-thousand million and that's one billion," he said trying to put it in perspective.

J&J averaged $11.5 billion every year in profit since 2009 with expenditures of $57 million every day in marketing and advertising.

Attorney David Mazie asked "Every 45 minutes of every single day, J&J spends the amount the jury awarded yesterday?"

"That's correct," said Dr. Tinari.

On cross exam, Ethicon attorney William Gage reminded jurors that was the relative worth of all of the subsidiaries, not just women's health division.

Mark Schneider, financial manager, J&J

The defense brought Mark Schneider to the stand, a senior manager of financial reporting at J&J. Looking uncomfortable at times, Schneider broke down the numbers for Prolift profits concluding that the net income from the sale of the Prolift vaginal mesh after taxes in South Dakota was $24,498 and in New Jersey was $122,413.

Mazie asked if he had a dollar-for-dollar amount for Prolift sales, which Schneider did not.

Mazie: "Are you aware that for the first half of 2008 the total sales for Prolift were $55 million? Schneider answered that might have been a peak period.

Mazie: "You are telling us under oath that J&J made $24, 498 in profit in South Dakota? That's what you're telling them?

Schneider: "Yes."

Mazie: "The profit in New Jersey for seven years was $46,647?"

Schneider: "That's based on the profits and loss that I had."

Mazie: "No further questions," he ended abruptly.

CLEAR AND CONVINCING EVIDENCE

Adam Slater

In the afternoon, Ms. Gross attorney, Adam Slater reminded jurors of the importance of the civil justice system.

"You have Linda and Jeff coming from South Dakota, coming to a courtroom against Johnson & Johnson, one of the biggest companies in the world and they get nine people from Atlantic County to decide what's right and wrong. It doesn't get any better than that," he said.

Slater said the burden for jurors now is to consider clear and convincing evidence of reckless indifference which he said jurors had already found in concluding J&J fraudulently misrepresented the dangers of Prolift and failed to warn about the risks of Prolift.

He reminded jurors of the words of Medical Director, Dr. Charlotte Owens who confirmed there would be some women who would experience chronic inflammatory reaction some at a significant level, though the company never explored removal options.

Dr. Axel Arnaud, Ethicon

Dr. Axel Arnaud's testimony was replayed in which he said manufacturers don't have a "crystal ball" to know what complications will arise and that a 5-15% complication rate is"a good wording," even though the patient brochure called the complication rate "rare."

Slater asked jurors to "deter and discourage" the corporate behavior and "send a message and make that number count and make sure it's heard."

Punitive damages in New Jersey are capped at five times the compensatory amount or in this case $16.75 million, a fact jurors have not been told.