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

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, Esq.

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