Friday, February 22, 2013


I personally believe Linda Gross did not have adequate representation. Why, you ask?

The trial ended with testimony by Dr. Kaveler discussing surgical procedure. This is a product liability lawsuit. Why did Mazie Katz allow the very last testimony heard by the jury to be about surgical procedure?

A few simple rebuttals would have helped. Like asking the jury, "If you had a splinter in your finger, what would you do? Would you get pain management for a splinter? No. Would you get physical therapy for a splinter? No."

It is such a simple example of how Linda Gross is suffering. She feels like she has hundreds of splinters in her pelvis. No one in their right mind would leave a splinter in their finger, get pain management, physical therapy or go to a psychiatrist. You would GET IT OUT!

Yet the jury is left with the thought, "Why did she not just leave the mesh implanted in her pelvis? Why did she insist the mesh be removed?" by her own attorneys who allowed the testimony to rely heavily on testimony about surgical procedures, how many were there, who recommended them, who did them, did the doctor recommend them or did Linda Gross ask for them. WHAT?

Or did Mazie Katz present the simple thought....surgically removing mesh from your body is like cutting gum out of your hair. No I did not hear that one either. Maybe then the jury would have better understood the pain and agony of each and every mesh removal surgery Linda Gross has endured.

Believe me, if you had mesh in your pelvis, as I have for over 11 years, you will undergo whatever surgery it takes to get the mesh out. I suffer, certainly not to the extent  Linda Gross does, and I KNOW how she feels about getting it out. Mesh pain is pure torture.

Where was the testimony about the inherent defects of the Prolift Gynemesh implanted in Linda Gross?

Did her attorneys Mazie, Katz, Slater & Freeman discredit the synthetic surgical mesh product itself during the trial?


What I saw:
1) attack of the ethics of Ethicon/Johnson & Johnson - sure it showed the seeming fraud by Ethicon in not getting the product cleared by the FDA before actually selling the Prolift product
2) failure to warn the doctor
3) fraud and misrepresentation

What I did not see: Evidence presented by Mazie, Katz of the inherent defects of the physical and chemical properties of Prolift Gynemesh polymer itself, that it degrades, decomposes and moves within the body at will.

Oh, there was some discussion of the pore size, the strain placed on Prolift in the pelvis and the placement of the Gynemesh in the pelvis when it had historically been placed for hernia repair in the abdomen.

The case put on by Mazie, Katz, Slater & Freeman gives Gynecare, Ethicon, Johnson & Johnson free reign to continue to sell their Gynemesh product by simply changing their "Instructions for Use" (IFU) and re-submitting them to the FDA/CDRH for clearance......WHICH THEY HAVE ALREADY DONE.

Ethicon no longer sells Prolift, TVT Secur, Prolift M, etc. They have been removed from the market.


So there are lots of cheers and support of Mazie, Katz and all the other law firms involved in the pelvic mesh lawsuits in New Jersey.

A word of caution: this is "product liability prosecution light". The company lives to "die another day".

Last but not least. One has to wonder why a law firm such as Mazie, Katz, Slater & Freeman, a relatively small law firm, took on prosecution of an industry giant, a multi-billion dollar pharmaceutical company that annually makes BILLIONS of dollars in profit when they had never before been involved in a class action or mass tort. Belongs in the DMS (doesn't make sense) file to me.

Or maybe not when you realize punitive damages are capped at 5 times compensatory damages or $350,000.00, whichever is greater, in the state of New Jersey protecting Gynecare/Ethicon/Johnson & Johnson from potentially millions and millions more dollars of liability than if it were tried in another state.

And Mazie Katz only had 85 cases when they originally filed their first cases after years of running their "mesh complications" website ad all over the internet AND anywhere you see my name?

Or that they use "truth in medicine" as a tag for their website.

Advertise the hell out of your lawsuit against J&J, but take as few cases as possible.

Seriously limits the overall monetary liability of J&J by reducing the number of cases and having a cap on punitive damages. Sweet deal for J&J but why Mazie, Katz involvment?

Been thinking about this for over 4 years since October 2008 when Matthew Mendelshon contacted me from Mazie Katz and set up a conference call with Adam Slater to potentially hire me as a legal consultant.

I know now hiring me was not the intent of the conversation. Adam Slater ask me "Are there a lot of these injuries out there?" I answered a resounding "Yes".

THE VERY NEXT DAY their "mesh complications" website went online and everywhere you see my name, there's a Mazie Katz ad.

Now think about the trial testimony. 2008 is when the FDA/CDRH finally knew the Prolift was being marketed without clearance. Ethicon knew the cat was out of the bag. Coincidence Mazie Katz contacted me in the fall of 2008? Maybe.

But knowing there are hundreds of thousands of pelvic organ prolapse mesh kits implanted in women every single year, how is it Mazie Katz wound up with only 85 cases after years of their online advertising?

Like I said, belongs in the DMS (doesn't make sense) file. I report, you decide.


Sarah S said...

I appreciate your analysis; you've presented new information that no one else is reporting. I was wondering why the jury didn't find defectiveness... And I haven't read one report on punitives that mentions the NJ cap.

I did find a couple things unfair, however. First, I work for a small firm (5 attorneys), but our size doesn't deter us from pursuing the best cases against the biggest players. As long as your attorneys are skilled and you have the resources, I say go for it. I'd rather hear of a great victory by a smaller firm than a BigLaw firm. Because I don't work for a megafirm, I am able to devote more time to my clients. I've found that my mesh clients, more than any others, want to talk. A lot. And I'm here for them because I don't bill hours.

Second, I wouldn't scoff at 85 mesh clients. There are many, MANY reasons to reject a client, and those of us who are spending a lot of money here in the beginning of the TVM litigation all have our own criteria for client intake. You want consistent medical documentation, not too many pre-existing conditions, revision operation(s), and most importantly- honesty. There are also statute of limitations issues to consider. We don't know yet what the rule is for each state as applied to the mesh products- will tolling be allowed bc there was fraudulent concealment of the products' defectiveness? Some states have a VERY harsh 1-year SOL for filing. Finally, you don't know how many previous obligations this firm had before taking on mesh clients. You never want to take on so many cases that you can't give each client the attention that she deserves.

Lana Keeton said...

Dear Sarah S,

Thank you for your comment. I agree with a lot of it. However, I did not tell you all the facts available to me because I do not want to be sued. My criticism is well founded.

It's not that they are a small firm, it is their lack of competent prosecution allowing J&J to walk away with ONLY $3.5 million compensatory and $7.76 million punitive. $11.1 million is nothing to J&J.

And by filing in state court in NJ, J&J had a lot of advantages. J&j is a huge tax base for the state and has thousands of employees. That is not lost on the jurors who are residents of NJ.

And punitive damages are capped.

As to the number of cases, I look at it from a statistical perspective. Only 85 cases is unrealistic. Unless, of course, the size of their firm prevented them from filing all the viable cases because they did not have enough money to file them.

Thanks again for your interest. Stay tuned for more.

Best, Lana Keeton

Anonymous said...

Can you recommend a lawyer?