What's Next in the Linda Gross v. Ethicon Trial ~ Michael Monheit, Anapol Schwartz

Michael Monheit, Anapol Schwartz

February 13, 2014 ~ Yesterday, Tuesday, February 12, the case rested in the Linda Gross v. Ethicon trial. Linda Gross, 43, alleges that the Ethicon manufactured Prolift system, a permanent medical device implant made by a division of Johnson & Johnson, was defective in its design, manufacture and in instructions for use.

Mesh Medical Device News Desk Legal (here) followed all 22 days of trial testimony courtesy of Courtroom View Network.

Attorney Michael Monheit of the Philadelphia firm, Anapol Schwartz comments on what might be ahead and offers a valuable reading resource to understand the New Jersey courts.

"Jury instructions are given (usually verbally) by a judge to the jury.

They are an explanation of the applicable law that a judge gives to the jury before they begin their deliberations. The judge explains to the jury how the law is to be applied to the set of facts before the jury, in other words, what factors they are to consider – what are the issues of fact that they are being asked to decide.

Judge Carol Higbee will give the jury general instructions, such as the role of credibility or bias in considering the testimony of witnesses. Included in her directive are case specific instructions that are specific to the type of case.

In a products liability case or a negligent warning case the jury will need to determine whether the warning was adequate or whether the product was fit for its intended use. The judge will give instructions on failure to warn, fitness for intended use, proximate causation, intervening negligence, and on damages.

Here are NJ’s standard jury instructions:

Jury instructions are given (usually verbally) by a judge to the jury.

They are an explanation of the applicable law that a judge gives to the jury before they begin their deliberations. The judge explains to the jury how the law is to be applied to the set of facts before the jury, in other words, what factors they are to consider – what are the issues of fact that they are being asked to decide.

Judge Carol Higbee will give the jury general instructions, such as the role of credibility or bias in considering the testimony of witnesses. Included in her directive are case specific instructions that are specific to the type of case.

In a products liability case or a negligent warning case the jury will need to determine whether the warning was adequate or whether the product was fit for its intended use. The judge will give instructions on failure to warn, fitness for intended use, proximate causation, intervening negligence, and on damages.

Here are NJ’s standard jury instructions:

Here … on design defect:

Here … on proximate cause:

and Here on Failure to Warn:

For an example from another state on failure to warn in a product case, see here:

Finally, the burden of proof in a civil case is a preponderance of the evidence. The proverbial “tipping of the scale”.

The plaintiff has a burden on each element to prove that what they have asserted by tipping the scale (e.g. ~51%) in their favor. So if the jury thinks that the plaintiff’s assertions are more likely true than the defendants, then they would find for the plaintiff. Simply, the plaintiff needs to prove that each element of their case is more probable than not. This is a much lower standard than the “beyond a reasonable doubt” standard that you find in criminal matters. It is also lower than a “clear and convincing” standard that

you see applied in certain cases of equity, family law, probate, wills, right to die, etc.

Michael H. Monheit, Esquire

MMonheit@AnapolSchwartz.com

1710 Spruce Street

Philadelphia, PA 19103

215-840-6573