.” Here’s the Los Angeles Times’ lead paragraph about it:
If body-horror auteur David Cronenberg had dramatized any of the nightmarish stories in Kirby Dick and Amy Ziering’s medical documentary “The Bleeding Edge,” you wouldn’t hesitate to call it a fright film. Such is the grim impact of this investigative, wince-inducing examination of the $400 billion medical device industry, which routinely sends FDA-approved products into the marketplace for use on and in patients without any rigorous clinical safety-testing on humans.
One of the stories involves Johnson & Johnson’s “heavily sold, under-scrutinized gynecological product — vaginal mesh that hardens, causing horrible pelvic damage, and in one couple’s instance, cutting the husband’s penis during intercourse — getting such devices removed (when they were intended to be permanent) can be as undefined and risk-laden a decision as leaving them in.”
(Johnson & Johnson is a company we tend to company.)
In an interview with Salon’s Gary Kramer, filmmaker Amy Ziering , “Can legal cases change things?”:
Not exactly, because of Tort Reform. It’s a $683 billion industry and they paid off $200 million in settlements. They can factor that in. That’s the collateral damage: We might have to settle because it’s a bad product. We might have to pay $500 million, but we made $683 billion. We’re good.
The types of “tort reform” to which she may be referring are limits on punitive damages. ,“are awarded to hold reckless companies accountable through imposition of significant financial liability.… They are one of the most critical tools to stop and remedy egregious corporate misconduct."
As the Center for Justice & Democracy wrote in its 2011 study, “What You Need to Know About … Punitive Damages,"
Despite the fact that punitive damages are supported by some of our nation’s most respected free-market economists (many of whom are politically conservative), and have been around for centuries and are often a stronger deterrent than the criminal justice system, they remain under attack. In the last few decades and even this year, corporate lobbyists and court decisions have rendered punitive damages’ deterrence power meaningless, often by disconnecting punitive remedies from a company’s wealth.…
The size of a punitive damages award shouldn't be dictated by politicians sitting in a state capital. It is supposed to depend on,
…widely varying factors determined on a case-by-case basis — factors like the nature of the misconduct involved and the amount that the judge or jury determines is necessary to get a company’s attention, which is precisely what makes punitives so effective.… [J]uries know that to a multi-billion-dollar company … even a million-dollar punitive damages award is barely a slap on the wrist, creating no financial pressure on the company to create a safer design.…[L]imiting punitive damages to a predictable amount of money undermines their deterrent force in the civil justice system.…
To put it another way, when laws cap or limit punitive damages, as they do in many states, the type and amount of misconduct in which a large company like J&J may engage becomes, simply, a cost of doing business.
Juries are generally very smart about punitive damages. Just this month, a St. Louis jury hit J&J with a punitive damages award of over $4 billion for putting asbestos in its talcum powder, which caused ovarian cancer in its customers. One of the jurors the St. Louis Post-Dispatch, that it “arrived at that figure by multiplying a recent talcum powder yearly sales total by the roughly 40 years since the company said its products were free of asbestos.” Smart.
But now come the “twists.” Writes the paper, "Johnson & Johnson vowed to appeal the verdict. The company also is likely to file a motion invoking a cap on punitive damages of five times compensatory damages, although Holland said Friday that the constitutionality of that Missouri cap had never been fully tested."
Indeed, Missouri’s cap on punitive damages was struck down as unconstitutional in 2014, but that ruling only covered . It also is not uncommon for judges, on their own, to reduce or reverse large punitive damages award. And then there’s the U.S. Supreme Court, which sometimes takes its own swipes at large punitive damage awards – not always. a South Dakota woman’s award of $55 million in another St. Louis trial, saying Missouri courts lacked jurisdiction because neither she nor Johnson & Johnson had the necessary connection to the state. Only five plaintiffs in Thursday’s case are from Missouri …."
But J&J's argument . We’ll see.
One thing’s for sure, however. The frustration we feel about all this is nothing compared to what the victims and their families must feel, some of whose stories are covered in . Let’s hope J&J is finally on the hook for some of the misery it has caused its loyal customers.