TVM Update: J&J Officials May Have Intentionally Destroyed Ethicon Vaginal Mesh Documents


Ethicon-j-and-j-logoOfficials at Johnson & Johnson’s Ethicon division are currently facing serious allegations that they intentionally destroyed important documents that had been order to be preserved as evidence for thousands of vaginal mesh lawsuits. Specifically, plaintiffs’ attorneys in the bellwether vaginal mesh lawsuit that is scheduled to get underway on February 10, 2014 are alleging that Ethicon’s employees purposefully destroyed or lost various documents related to the development and FDA approval of the company’s Gynecare Prolift vaginal mesh (In Re Ethicon Pelvic Repair System Products Liability Litigation, 12-MD-02327, U.S. District Court, Southern District of West Virginia, Charleston).

These allegations were thoroughly laid out in a 26-page motion filed by the plaintiffs’ attorneys in West Virginia on December 2. The destroyed documents, according to the motion, had been stored on the hard drive of a computer used by Renee Selman, the former president of Ethicon. According to court documents associated with this motion, over the course of a decade, Ethicon employees intentionally threw out or “misplaced” hundreds of thousands of these crucial documents despite the fact that Johnson & Johnson executives had officially ordered the preservation of these documents for upcoming litigation.

As part of this motion, the plaintiffs’ lawyers are also contending that the defendants, both Ethicon and Johnson & Johnson, should not be able to present certain defense arguments during the trial because such arguments may allow them to benefit from the loss of these documents. Instead, the plaintiffs’ attorneys are requesting that the defense’s arguments be limited so that the plaintiffs’ case does suffer due to gaps in their stories that have been created by the loss of these crucial documents. Additionally, the motion seeks to bar the defendants from being able to try to get certain vaginal mesh lawsuits dismissed because they were filed past the legal deadlines or due to other such administrative or logistical reasons.

The Defendants’ Response to Allegations of Document Destruction

In response to these serious allegations, officials at Ethicon have admitted that the documents in question were indeed destroyed, but they have denied that the document destruction was intentional. According to Matthew Johnson, a spokesman for Ethicon, there is “an appropriate process” in place for maintaining important documents associated with vaginal mesh litigation, and the company has already provided millions of pages of retained documents to the plaintiffs’ attorneys.

“[Ethicon’s employees] have never intentionally destroyed, withheld or failed to produce relevant documents,” Johnson has officially stated. He also stated that the documents that were lost had “inadvertently not been maintained.”

Vaginal Mesh Lawsuits Filed to Date

The decision handed down in response to this motion could have a significant effect on the thousands of vaginal mesh lawsuits currently pending against Ethicon. In fact, according to a case list issued on November 18 by the U.S. Judicial Panel on Multidistrict Litigation, of all of the vaginal mesh manufacturers facing lawsuits, Johnson & Johnson’s Ethicon unit is facing the most, as there are 11,376 vaginal mesh lawsuits currently pending against Ethicon.

Other companies that are also facing thousands of vaginal mesh lawsuits include American Medical System, which is facing 11,369 such lawsuits; Boston Scientific, which is facing 7,131 vaginal mesh lawsuits; and Bard Avaulta, which is facing 5,275 of these lawsuits. 

Topics:  Destruction of Evidence, FDA, Healthcare, Medical Devices, Transvaginal Mesh

Published In: Civil Procedure Updates, Products Liability Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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