Ethicon Facing Penalties for Vaginal Mesh Evidence Destruction

Plaintiffs who alleged vaginal mesh injuries against Johnson & Johnson medical device subsidiary Ethicon Inc. won a partial victory when a federal judge on Feb. 4 decided on issues regarding the destruction of evidence that may have been germane to multidistrict litigation.

Judge Cheryl Eifert will allow transvaginal mesh attorneys to put exhibits regarding the destruction of evidence by information technology specialists that included emails between key company officials when relevant to claims including failure to warn, because plaintiffs are unable to assess what documentation was provided to their doctors.

There will also be monetary sanctions coming for Ethicon, although Eifert did not specify what they would be pending hearings. However, the company did win a reprieve that could prove significant: she did not allow for summary judgment regarding three bellwether trials.

With multidistrict litigation, these preliminary trials often set the tone for settlements and as such, could have proved costly although beneficial of course for women dealing with vaginal mesh implant failure side effects. Instead, the actions of the company’s employees will play a part in any decision by a jury.

According to the order, the key reason was that “Ethicon’s loss of evidence was negligent, not willful or deliberate, and Plaintiffs have failed to establish a resulting prejudice sufficient to support the severe sanctions of default judgment, striking of defenses, and the offering of an adverse instruction in every case.”

Judge Eifert wrote that the company had satisfactorily demonstrated that in prior instances of litigation, it had made a good faith effort in retaining documents specific to those cases, especially regarding the TVT Obturator. It simply had seen failures in document control that resulted in the destruction of evidence.

Moreover, while a case back in 2003 involving the TVT Obturator device necessitated a document preservation order at Johnson & Johnson, the order found it difficult to take the side of transvaginal sling attorneys who believed that the company should have kept information because of the alleged likelihood of future litigation regarding bladder sling implant failures that did no occur until several years later.

The cases affected by the order are consolidated as In Re: Ethicon Inc. Pelvic Repair Systems Product Liability Litigation, MDL No. 2327, in the U.S. District Court for the Southern District of West Virginia.

Women who have had a revision surgery regarding bladder sling implant failures may be able to obtain a legal remedy depending on the facts of their case. The first step is to get a legal consultation. You can submit your information as the first step in getting one by visiting the Vaginal Mesh Sling Class Action Lawsuit Investigation and filling out the form there.