In Jane Austen’s Persuasion, Anne Elliot was only 14-years-old when she lost her mother, the sensible and amiable Lady Elliot. The year was 1800, according to Sir Walter Elliot’s Baronetage book.
More than two hundred years later and across the Atlantic Ocean, the fictional Elkins family is reeling from a similar loss in Amelia Elkins Elkins. In my retelling of Persuasion, the matriarch’s untimely death propels her family to turn to the courts for justice.
Just last week, the Philadelphia courts resolved a similar type of case to the one at the heart of my novel.
In this real-life case, the plaintiff won an award of $12.5 million ($5.5 million in compensatory damages and $7 million in punitive damages) against Johnson & Johnson, which marketed an unsafe medical product made by Ethicon, one of its subsidiaries. The product was a vaginal mesh implant that caused the plaintiff to suffer on-going health problems that left her unable to have sex.
If that award sounds like a lot of money, consider this: the jury also heard Johnson & Johnson had $69 billion in shareholders equity, of which $44.1 billion was in the form of liquid assets. After the verdict, a Johnson & Johnson spokesperson said, “We believe the evidence showed Ethicon’s Prolift pelvic organ prolapse repair kit was properly designed; Ethicon acted appropriately and responsibly in the research, development and marketing of the product; and Prolift was not the cause of the plaintiff’s continuing medical problems.”
The point of punitive damages is to send a message for truly outrageous conduct, and Johnson & Johnson remains completely unrepentant. Maybe they’ll learn their lesson after a couple more verdicts like the one they just received in Philadelphia.
By the time I was writing Amelia Elkins Elkins, there were already about 50,000 transvaginal mesh cases filed in courts across the country, including the one that resolved in Philadelphia last week. The fictional lawsuit in my story is different from the typical mesh litigation, which usually involve product liability-related claims like negligence and strict liability, in that it also involves a wrongful death claim.
For the fictional Gladys Elkins, the pelvic mesh implant plays a role in her death. However, as the story unfolds, new details emerge that lead her daughter Amelia and the family’s lawyers to think twice about how to proceed with the case.
The novel includes excerpts from fictional court documents, which I tried to make as interesting as possible while retaining the ring of truth (this is no small feat considering how dull legal documents typically are!).
I was nervous about what readers would think of this aspect of the novel, particularly if they aren’t lawyers. Thankfully, though, Maggie from Macarons & Paperbacks allayed my concerns when she said in her review:
One of my favorite parts about this novel is how the romance, although thrilling and sweet, was not the main focus of the story. I loved diving into the legal world, which I know little about, and I appreciate how Blair clearly described all of the technical terms and documents. Being an attorney herself, I imagine that she’s had plenty of practice explaining legal practices to clients! If you’ve ever had any interest in the legal field, you’ll definitely enjoy following this fictional lawsuit as it envelops readers in mystery and intrigue.
Phew. Hopefully, others will feel the same way.
**UPDATE regarding the type of product that plays a role in the fictional events in Amelia Elkins Elkins: On January 4, 2016, the Food & Drug Administration announced that transvaginal mesh products used for pelvic organ prolapse repair will now have a “Class III” warning (instead of a Class II/moderate risk warning) because they carry a high risk of adverse events.