Public Law

PAST HONOREES OF THE OUTSTANDING ACHIEVEMENT IN PUBLIC LAW AWARD

2020 OUTSTANDING ACHIEVEMENT IN PUBLIC LAW AWARD: CALIFORNIA OFFICE OF THE ATTORNEY GENERAL’S PEOPLE V. JOHNSON & JOHNSON TRIAL TEAM

The California Office of the Attorney General’s People v. Johnson & Johnson Trial Team Honored by Public Law Section of the California Lawyers Association with Inaugural Outstanding Achievement in Public Law Award

The California Lawyers Association’s Public Law Section has awarded The California Office of the Attorney General’s People v. Johnson & Johnson Trial Team (Team) with the inaugural Outstanding Achievement in Public Law (OAPL) Award.  The Public Law Section has historically honored a Public Lawyer of the Year with the Ronald M. George Public Lawyer of the Year Award.  This new award, the Outstanding Achievement in Public Law, recognizes a specific achievement as opposed to a career in Public Law.  It also recognizes that frequently the achievements, as in this case, are accomplished, not by just one individual, but by a team of dedicated public lawyers.

This year’s inaugural award recognizes the Attorney General’s litigation team for their record-breaking consumer protection trial victory in which the court awarded civil penalties of $343.9 million against Johnson & Johnson and its Ethicon subsidiaries (J&J) for unfair business practices and false advertising regarding the sale of its vaginal mesh products.  This is the highest penalty awarded to date in a consumer protection action in California and an important victory for the safety of consumers in California and the nation. (People v. Johnson & Johnson (2020) 2020 WL 603964.)  The Public Law Section congratulates the trial team members: Adelina Acuña, Deputy Attorney General; Laurel Carnes, Deputy Attorney General; Tina Charoenpong, Deputy Attorney General; Joanna Hull, Deputy Attorney General; Devin Mauney, Deputy Attorney General; Jinsook Ohta, Supervising Deputy Attorney General, Daniel Osborn, Deputy Attorney General; Gabriel Schaeffer, Deputy Attorney General; Jon Worm, Supervising Deputy Attorney General; and Monica Zi, Deputy Attorney General for their contributions to this important decision.

 In 2016, the Attorney General’s office brought a civil law enforcement action against J&J for deceptively marketing pelvic mesh devices to women and physicians in violation of California’s Unfair Competition Law (UCL) and False Advertising Law (FAL). The case involved years of scorched-earth litigation, novel defense theories and the exceptionally complex factual landscapes of marketing and medicine, and, ultimately, a grueling nine-week bench trial in San Diego.

At trial, the litigation team proved that virtually all the company’s pelvic-mesh marketing deceived both patients and physicians about mesh devices’ serious, long-term complication risks while selectively touting their benefits. The evidence showed that J&J made deceptive pitches to physicians in their offices, operating rooms, and over dinner; paid consultant-physicians; embedded deceptive promotional messages about mesh in its educational lectures and at medical conferences and symposia; gave OB/GYNs, urologists, and family physicians stacks of deceptive patient brochures to hand out or display to patients in their waiting and exam rooms; and used a paid celebrity-athlete spokeswoman, hospital-sponsored women’s health events, and magazine and radio advertising to deceptively market the benefits and safety of mesh to women without mentioning its risks. J&J also spread deceptive information through promotional consumer websites, online banner ads and sponsored search results, and a consumer-facing hotline.

Through the exceptional trial lawyering of the members of the Attorney General’s office and innovative use of expert testimony, the court was able to find that J&J had committed over 275,000 quantifiable violations in the state of California alone. That deception deprived physicians of the ability to accurately counsel their patients and deprived patients of the ability to make fully informed decisions about a permanent, irreversible implant. On a broader scale, over two million women worldwide have had J&J’s mesh devices implanted in the past two decades, and hundreds of thousands have suffered serious complications and injuries as a result

The Court found that J&J carried out “serious, knowing, and willful misconduct over a period of close to twenty years.” The Court recognized that J&J’s pelvic mesh products are “meant to be permanently implanted in the human body for life and carry the potential to cause debilitating, chronic pain and destroy patients’ sexual, urinary, and defecatory functions—consequences that go to the very core of personal identity, dignity, and quality of daily life.”

The Court awarded a civil penalty commensurate with the gravity and scale of that wrongdoing. The People’s team obtained a penalty award of $343.9 million, composed of a $1,250 penalty for each of 153,351 UCL violations and 121,844 FAL violations committed in California. The award constitutes both the largest total civil penalty and largest per-violation penalty ever imposed at trial under the UCL or FAL, and is fifty times greater than the largest UCL and FAL penalty previously awarded by a California court following trial.  This is truly an outstanding achievement in Public Law, as recognized by this award.

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