Bloomberg news service reports that court documents filed recently In Re Ethicon Pelvic Repair System Products Liability Litigation, a U.S. District Court Case in the Southern District of West Virginia, allege that a Johnson & Johnson subsidiary destroyed or misplaced documents related to its vaginal mesh implants.
As a result, transvaginal mesh plaintiff attorneys are requesting that the the subsidiary, Ethicon, be barred from launching certain types of defenses in a series of upcoming trials.
If you aren’t familiar, Ethicon was responsible for the manufacture of a type of implant known as the Gynecare Prolift. It was one of the four types of mesh products, used to treat urinary incontinence, that Johnson & Johnson decided to stop selling back in June of 2012. That decision came after two large groups of lawsuits were filed by women who claimed that implantation of the devices had caused them serious injury.
At the time, Johnson & Johnson insisted the move had nothing to do with the safety or efficacy of the products, but rather was a reflection of the product’s commercial viability. This was yet one more example of the company (and several others like it) deflecting safety concerns to patients and health care providers who trusted them to provide accurate information about the risks.
So perhaps it should be of little surprise that its subsidiary is accused of attempting to cover-up valuable information pertinent to the ongoing litigation.
In its most recent filing, plaintiff attorneys say that Ethicon either lost or intentionally disposed of hundreds of thousands of documents over the course of the last 10 years – despite the fact that they were ordered to preserve them. This destruction, attorneys for the women say, has substantially hindered the claims the women are trying to make – particularly important as the time nears for the courts to hear the cases. The attorneys argue it would be unfair for the company to benefit from gaps in information resulting from their own destruction of relevant records.
The allegation was made just ahead of the first of a series of lawsuits slated to go to court in February of next year in West Virginia. Earlier this year in New Jersey, Ethicon lost an $11 million lawsuit in which a woman claimed a Prolift insertion resulted in her suffering chronic pain.
A representative for the company insisted it had an appropriate and legal process for the retention of records. Thus far, millions of documents have been turned over to plaintiff attorneys.
However, the volume of documents already submitted won’t matter if the court deems the importance of the lost or destroyed documents relevant to the cases at hand.
The U.S. Food and Drug Administration last year ordered Johnson & Johnson, as well as dozens of other medical product manufacturers, to initiate a study regarding the rates of complication and organ damage linked to the mesh implants. It’s estimated that some 70,000 Americans have undergone some kind of mesh implant surgery just in 2010 alone. The products were threaded through vaginal incisions in cases where the muscles in the pelvis were found to have failed the support of internal organs.
Problem was, those mesh devices eroded over time, in some cases shrinking. This has resulted in injuries and in many cases, unbearable pain.
With regard to the discarded documents, executives with Johnson & Johnson have reported that they had warned officials in the Ethicon branch to retain the records in question. The records pertained to the development and regulatory approval of the products. Even Ethicon now concedes that not all of its employees complied with that order, adding that some “did not understand” the executive order.
However, given that this move now benefits the defendants in a big way is extremely suspect.
If you are the victim of Massachusetts product liability, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.
Johnson & Johnson Unit Facing Possible Sanctions in Vaginal Mesh MDL, Dec. 11, 2013, By Jennifer Mesko, DrugWatch.com
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Atwell v. Boston Scientific Corp. Addresses Jurisdiction in Large Transvaginal Mesh Claims, Dec. 5, 2013, Boston Transvaginal Mesh Lawsuit Attorney Blog