Plaintiffs File Motion for Sanctions in Ethicon Vaginal Mesh Lawsuits

Plaintiffs who have filed Ethicon vaginal mesh lawsuits against Johnson & Johnson have now slapped the company with a motion for sanctions involving thousands of missing key documents. Plaintiffs involved in the motion allege Ethicon destroyed or lost those documents that were to be a significant factor in litigation.

The motion was filed just two months ahead of when the first bellwether trials in the vaginal mesh multidistrict litigation are scheduled to begin.

Ethicon facing thousands of federal lawsuits

Ethicon, a subsidiary of pharmaceutical giant Johnson & Johnson, is currently facing more than 11,000 lawsuits involving their vaginal mesh devices. Plaintiffs allege serious transvaginal mesh complications, including mesh erosion, perforation of organs and recurrent infections. The cases have been coordinated into multidistrict litigation in U.S. District Court for the Southern District of West Virginia, where they are overseen by the Honorable Judge Joseph Goodwin.

Multidistrict litigation is established when there are a growing number of lawsuits with common allegations and statements of fact. The purpose of the coordination is to streamline early trial proceedings to make the legal process more efficient and convenient for everyone involved. In addition to the Ethicon MDL, Judge Goodwin is also overseeing MDLs involving five other mesh manufacturers: American Medical Systems, Bard Avaulta, Boston Scientific, Coloplast and Cook Medical.

Multitude of documents lost, missing or destroyed

Plaintiffs filed their motion in the Ethicon MDL after discovering that numerous documents may be missing. The loss of evidence could “severely prejudice” the plaintiffs in the upcoming bellwether trials. In their motion, plaintiffs claim Ethicon representatives have “lost or destroyed at least tens of thousands, maybe hundreds of thousands, of documents that likely contain information relevant to [their] claims.”

Ethicon has denied the charges in the motion, stating missing documents are a result of errors by employees to adhere to document retention protocols. Company officials cited “misunderstandings” by some employees regarding responsibility for preservation of documents when those employees left Ethicon. The company has also claimed many of the “missing” documents are available through other means.

The first bellwether trial involving Ethicon vaginal mesh lawsuits was scheduled to begin February 10, 2014, although the motion involving sanctions has not yet been decided by Judge Goodwin. On February 4, U.S. Magistrate Judge Cheryl Eifert determined that while Johnson & Johnson did not intentionally destroy documents prior to trial, their mishandling of files warranted punishment by allowing some juries to hear of the destruction of documents during trial.

Judge Eifert’s recommendations will need to be reviewed by Judge Goodwin before they become final. Plaintiffs who have suffered severe transvaginal mesh complications from Ethicon devices, as well as devices manufactured by other companies, will be watching with interest to see how this motion is decided. With thousands of cases currently pending in multidistrict litigation, and many more in state courts across the country, this decision could have major ramifications for vaginal mesh lawsuits already filed and those that may be filed in the future.

History of vaginal mesh

When transvaginal mesh devices were first introduced, they were highly touted as an effective alternative to traditional surgery for the treatment of pelvic organ prolapse and stress urinary incontinence. However, hundreds of reports from women who were seriously injured by the devices have resulted in some mesh products being taken off the market and a growing amount of litigation against manufacturers of the devices.

In July, 2011, the FDA issued a safety communication, stating complications from pelvic mesh devices were not rare, and there was no evidence to suggest these devices were any more effective than traditional surgical procedure.

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