J&J and the Destroyed Records in Vaginal Mesh Cases

On February 4, 2014, Federal Magistrate Judge Cheryl Eifert found that Johnson and Johnson lost or destroyed thousands of documents and computer files dating back to 2007 related to development of J&J’s Gynecare Prolift and TVT Retropubic meshes. At the time, current J&J CEO Alex Gorsky was the head of the Ethicon Subsidiary responsible for the vaginal mesh implants.

CEO Alex Gorsky

CEO Alex Gorsky

However, Federal Magistrate Cheryl Eifert stopped short of finding the PHARMA giant did so intentionally, holding instead the destruction was negligent. (In Re Ethicon Pelvic Repair System Products Liability Litigation, 12-MD-02327, U.S. District Court, Southern District of West Virginia (Charleston)). There are currently over 11,000 lawsuits pending against Johnson & Johnson’s Ethicon division, which manufactured the Gynecare Prolift and TVT Retropubic meshes. The cases are part of the thousands before U.S. District Court Judge Joseph Goodwin at the U.S. District Court, Southern District of West Virginia. Suits have been filed against J&J, Bard, Endo Health Solutions Inc., and Boston Scientific Corp.

In ruling against Johnson & Johnson, the court noted that the obligation to preserve evidence arises when “litigation is reasonably anticipated.” If a company fails to do so, a court may impose sanctions ranging from monetary penalties to prohibiting the company from making certain arguments at trial. According to the court’s order, Johnson & Johnson’s efforts to preserve documents were “riddled with holes” and “failed miserably in certain instances.”

J&J stopped selling four vaginal mesh products in the face of the massive suits in 2012.  Also in 2012, FDA asserted that the company sold Gynecare Prolift for three years even though it didn’t have the right regulatory approval to do so.  In 2012, the FDA ordered CR Bard Inc and 31 other vaginal mesh implant makers to study rates of organ damage and complications linked to implants.

Patient Advocacy Group Asks For Federal Investigation

On March 26, 2014, a patient advocacy consumer group called the Corporate Action Network filed a complaint with the Department of Justice asking for an investigation into whether J&J and its executives including CEO Alex Gorsky deliberately destroyed the records. In its letter the group asked Attorney General Eric Holder:

“We respectfully request that you investigate Johnson and Johnson, Inc. and its top executives including Chairman and CEO, Alex Gorsky, for two possible criminal violations: first, for obstruction of a criminal investigation of health care offenses in apparent violation of 18 U.S.C. Section 1518 and second, for destruction of documents in apparent violation of 18 U.S.C. Section 1519. This request follows the recent discovery of document destruction by Johnson and Johnson as related to lawsuits brought against them by thousands of women across the United States who have been seriously injured by the corporation’s pelvic mesh implants”.

Vaginal Mesh Trial History

Bard has lost two jury trials, settled a third case after a jury selected, and settled a fourth before trial commenced.  In July 2012, a California jury awarded Christine Scott and her husband $5.5 million after she underwent nine revision surgeries.  Scott sued C.R. Bard in 2009 over its Avaulta Plus mesh product.

In February 2013, Linda Gross won $11.11 million in her lawsuit against Johnson & Johnson’s Ethicon brand over its Prolift vaginal mesh product.  Gross had 18 surgeries.  The New Jersey jury found that J&J failed to warn patients and doctors about the risks of its mesh products and made fraudulent misrepresentations.

On August 15, 2013, after about 12 hours of deliberation, the jury found for Donna Cisson in her vaginal mesh trial against manufacturer C.R. Bard Inc, and found damages in the amount of $250,000 and $1.75 million in punitive damages.  The jury found that Bard failed to provide adequate warnings as to the defects in its vaginal mesh product and that the device was defective.  Judge Joseph Goodwin upheld the 2 million verdict in October 2013 as appropriate and that Cisson’s attorneys proved the company’s vaginal mesh was the cause of her injuries.  In Queen vs. Bard, starting trial immediately after Cisson, a settlement was reached after the jury was selected.  Finally, Bard settled Melanie Virgil’s claims that Bard’s Avaulta Plus insert caused urinary problems before trial commenced in New Jersey.

On February 18, 2014, Judge Joseph Goodwin granted Ethicon’s Motion for Directed Verdict at the close of Plaintiff’s case in Lewis vs. Ethicon, Inc. (In Re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation, MDL Docket No. 2327, Carolyn Lewis, et al. v. Johnson & Johnson, et al., No. 2:12-4301, S.D. W.Va.).

Our office represents women who have suffered horribly from these mesh products. We remain committed to representing them to a successful conclusion of their cases.

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