Transvaginal Mesh Plaintiffs Accuse Ethicon of Destroying Evidence

Attorneys for women suing Ethicon over injuries allegedly caused by transvaginal mesh, a treatment for female urinary incontinence, filed a motion earlier this month arguing that Ethicon intentionally lost or damaged evidence important to the transvaginal mesh lawyers’ case. Ethicon, a Johnson & Johnson subsidiary, denies that any important evidence was intentionally destroyed.

The plaintiffs’ attorneys asked Judge Goodwin of the U.S. District Court for West Virginia to impose stiff sanctions on Ethicon for what they describe as “systematic and continual” evidence spoliation over the past decade. The motion alleged that the company lost or destroyed records, emails, and other documents from current and former high-level corporate executives, sales representatives, and experts.

They argue that Ethicon also lost 600 pounds of documents sent to it from Medscand, the original manufacturer of one of the devices at issue in the litigation.

Ethicon mesh lawsuit

The plaintiffs point to a litigation hold that was placed on documents from 2003 onward. The litigation hold stipulated that certain communications and data should be preserved for future legal proceedings. Despite that litigation hold, in 2010 Ethicon erased the hard drive of its former worldwide president, Renee Selman, who oversaw the company’s key policies and developments from 2005 to 2010.

In court documents, plaintiffs wrote, “Given Ms. Selman’s role as a high-level decision-maker at Ethicon, her hard drive surely contained vital information about Ethicon’s policies, safety procedures, marketing strategies, and numerous other key issues. All of that information is gone. … Ethicon … has admitted that it destroyed all documents that Ms. Selman had saved on her hard drive.”

Ethicon denies that it intentionally destroyed important evidence to the plaintiffs’ case, and will be filing a response to the plaintiffs’ motion shortly.

The Ethicon mesh MDL is one of just of six separate MDLs against different companies that manufactured vaginal mesh implants. All of the lawsuits involve allegations of similar injuries suffered by the women who received the implants. The other defendants include Boston Scientific, C.R. Bard, American Medical Systems, Coloplast Corp., Cook Medical, and Mentor Corp.

Transvaginal mesh lawyers seek sanctions

As a punishment for destroying this evidence in the Johnson & Johnson multidistrict litigation, plaintiffs’ attorneys have requested that Judge Goodwin impose sanctions on Ethicon. They want the judge to declare a default judgment in their favor in some of the earliest cases to be tried in the MDL, known as bellwethers.

They also ask that the judge bar the defendants from using the “learned intermediary defense,” in which manufacturers argue that they fulfilled their duty of care to consumers by educating a “learned intermediary,” such as a doctor, about their product.

Furthermore, they want the defendants to be barred from using the statute of limitations defense in all Ethicon mesh lawsuit actions.

Surgical mesh devices: More harm than good?

Transvaginal mesh is a device used to strengthen the vaginal wall, usually to correct one of two conditions, pelvic organ prolapse (POP), or stress urinary incontinence. Transvaginal mesh has been linked to serious complications, including mesh erosion, which is when mesh breaks down and erodes shortly after the device is implanted.

Transvaginal mesh can also cause organ perforation, when the mesh punctures nearby organs, causing internal bleeding. Patients who suffer from serious transvaginal mesh complications often require revision surgery, blood transfusion, IV therapy, and drainage or hematomas or abscesses.

Patients who have suffered these injuries have brought products liability and personal injury lawsuits against the manufacturers of transvaginal mesh.