An Atlantic County jury on Thursday awarded $7.76 million in punitive damages, three days after a $3.35 million compensatory damages award, in the first mass tort trial over Johnson & Johnson’s pelvic mesh implants.
The panel delivered the 7-2 verdict after about eight hours of deliberation over three days.
The litigation, In Re Pelvic Mesh/Gynecare Litigation, No. 291, encompasses more than 2,100 suits claiming injuries from  the Gynecare Prolift pelvic mesh product, made by J&J subsidiary Ethicon, of Somerville, and used to treat organ prolapse and urinary incontinence.
“We asked during closing arguments for the jury to send a message to J&J and Ethicon … and the jury sent that message,” says plaintiff counsel David Mazie, of Mazie Slater Katz & Freeman of Roseland.
Mazie calls the award “bulletproof because it’s well within New Jersey and U.S. Supreme Court guidelines” for punitive damages.
Superior Court Judge Carol Higbee previously ruled that plaintiffs who were administered Ethicon’s mesh products before approval by the federal Food & Drug Administration in 2008 would automatically be entitled to a trial on punitive damages on an award of compensatory damages, he adds.
Still, Ethicon has promised to appeal Thursday’s verdict as well as Monday’s, when the jury found Ethicon liable on failure-to-warn and fraudulent-misrepresentation charges. That 7-2  verdict came after eight weeks of trial, including five days of deliberation.
The jury’s compensatory damages award was made up of $1.1 million for pain and suffering, $1 million for future medical expenses, $500,000 for future lost wages, $385,000 for past medical expenses, $180,000 for past lost wages, and $185,000 for a per quod claim.
Spokeswoman Sheri Woodruff says Ethicon invested more than a decade and “acted appropriately and responsibly in the research, development and marketing of the Prolift pelvic organ prolapse repair kit.”
She adds that all surgeries to correct pelvic organ prolapse carry risk, and “Ethicon’s devices are among the most studied products for these conditions.”
Woodruff points out that the punitive damages award, like the compensatory damages award, was a mixed verdict, and the jury absolved Ethicon on two other counts — defective design and fraudulent misrepresentation as to the plaintiff’s doctor.
Ethicon’s lead defense counsel, Kelly Crawford of Riker Danzig Scherer Hyland & Perretti in Morristown, deferred comment to Ethicon.
Gynecare Prolift, marketed and sold by Ethicon beginning in 2002, was designed for minimally invasive implantation through the vagina, and J&J has maintained that the products are safe.
But the plaintiffs claim they have a high failure rate, cause serious complications and necessitate corrective surgeries, despite their billing as safer than other surgical methods. The products allegedly erode into organs and vaginal walls, causing chronic pain, pain during sexual intercourse, scar tissue and other injuries.
The plaintiffs say they experienced complications as a result of implantation of one of several pelvic mesh products to treat organ prolapse — where organs slip or sink out of place — or urinary incontinence.
Suits were first filed in 2008, shortly before the federal Food and Drug Administration first announced that complications were being reported.
Linda Gross of Watertown, S.D., sued in November 2008, claiming she underwent 18 surgeries to correct injuries caused by a Gynecare Prolift mesh implant.
Witnesses included plaintiff expert Anne Weber, a urogynecologist who spent three days on the witness stand, as well as Gross’ treating physicians and a family doctor.
Gross’ attorneys also called, as adverse witnesses, Scott Ciarocca, who oversaw research and development of Gynecare Prolift, and Piet Hinol, an Ethicon staff urogynecologist.
After five days of deliberation, the jury found in 7-2 votes that Ethicon failed to warn Gross’ doctor about possible side effects and made fraudulent misrepresentations to Gross.
The jury found no cause of action on Gross’ defective-design claim (9-0) and a fraudulent misrepresentation claim as to Gross’ doctor (7-2).
A previous trial date was pushed back when J&J appealed Higbee’s May 2011 decision barring its use of expert physicians who had previously treated the plaintiffs. The ruling effectively disqualified 1,000 doctors, whose ranks grew as more complaints were filed, the defendants argued. The Appellate Division reversed that ruling, in part due to the relatively small number of doctors who have experience with pelvic mesh.
Gross’ suit was one of 2,182 against Ethicon to be filed as of Feb. 23. The multicounty litigation also encompasses 382 suits against C.R. Bard of Murray Hill over similar mesh products. The Supreme Court centralized the suits with Higbee in September 2010.
About 9,200 other suits over these and other pelvic mesh products have been lodged in federal court against J&J/Ethicon, C.R. Bard, American Medical Systems Inc., Boston Scientific Corp. and Coloplast Corp. Those cases were referred to multidistrict litigation in the Southern District of West Virginia.
Last June, J&J announced it would begin removing some mesh products from the market, citing “their commercial viability in light of changing market dynamics” and denying the move was motivated by safety issues.
Plaintiff counsel Adam Slater, of Mazie Slater Katz & Freeman in Roseland, who tried the case with Mazie, says the verdict shows that J&J and Ethicon “didn’t care about anything as much as they cared about sales and marketing.”
Mazie says it’s “a big deal to actually have fraud determined in a product liability case.”
The other plaintiff counsel in the case were Benjamin Anderson, of the Anderson Law Offices in Cleveland, and Jeffrey Grand, of Bernstein Liebhard in New York.
Says Christopher Placitella of Cohen Placitella Roth in Red Bank, who represents other pelvic mesh plaintiffs: ”The hope is it won’t take too many more trials before the parties can sit down and have a serious discussion.” He adds, “Obviously, the jury was concerned with the defendants’ conduct, and I think it bodes well for the future.”
The first known trial over allegedly injurious pelvic mesh of any sort was heard last year in Kern County Superior Court in Bakersfield, Calif. In a July 2012 verdict, the jury found C.R. Bard 60 percent liable for the plaintiff’s injuries and awarded $5.5 million.
“It’s too early for a trend, but the signs are good,” Placitella says.