Thousands of plaintiffs have suffered severe complications because of transvaginal mesh products (TVM) that were used to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI). Many of those patients have filed lawsuits against the manufacturers who are responsible for selling the defective mesh products. This includes lawsuits filed against Ethicon Inc., which is a subsidiary of Johnson and Johnson. Because so many plaintiffs filed lawsuits throughout the country, cases have been consolidated into multidistrict litigation, which means each plaintiff keeps her individual claim but one judge presides over all of the consolidated cases and answers common questions of law that apply.
Now, a judge in West Virginia has been asked by TVM plaintiffs to impose sanctions on Ethicon for what is being described as a “willful destruction of evidence” that occurred over the past decade. An experienced transvaginal mesh lawsuit lawyer should always be called to handle such cases. We know Ethicon placed a litigation hold in 2003 on information pertaining to some of the company’s mesh devices. This means that the company noted that information including communications and data about surgical mesh products should be preserved for any potential future legal proceedings. However, plaintiffs in the Ethicon trial insist that thousands of documents were systematically destroyed.
Ethicon Accused of Evidence Destruction
When litigation is pending against a company, that company cannot destroy evidence that plaintiffs could use to prove that the company should be found liable. Evidence must be turned over to plaintiffs during a “discovery” process so that plaintiffs can get the information needed to prove that the defendant company has done something wrong or is to blame for injuries. This is the very reason why Ethicon put a litigation hold on the communications related to TVM a decade ago.
However, despite this hold, Ethicon allegedly erased the hard drive from the computer used by its former worldwide president who was in charge of overseeing key policies and developments for Ethicon from 2005 through to 2010. Plaintiffs allege that Ethicon also lost or destroyed many other emails, documents and records from current and past top executives.
Medscand, one of the original manufacturers of TVM that is at issue in the transvaginal mesh litigation, also sent Ethicon an estimated 600 pounds of documents related to its vaginal mesh device. These 600 pounds of documents have allegedly been destroyed or lost as well.
According to Reuters Legal, Ethicon denies that this has occurred and a spokesperson insisted that the company had not ever intentionally or willfully destroyed or failed to produce any documents that were relevant to the transvaginal mesh cases. However, the judge will need to carefully weigh the evidence presented by both plaintiffs and defendants in order to determine who is telling the truth about whether the evidence was preserved.
Plaintiffs who hope to recover compensation for serious transvaginal mesh complications have the burden of proving that the mesh was defective when used as intended or that Ethicon was negligent or failed to warn them about the product’s risks. The documents from Ethicon could provide invaluable information to plaintiffs that will help them to make their case, and Ethicon could face stiff sanctions if the judge determines that evidence was willfully destroyed.
Author: Jeffrey DeCarlo