U.S. attorney general Eric Holder Jr. should open a criminal probe into the destruction of documents in lawsuits filed against Johnson & Johnson (NYSE:JNJ) subsidiary Ethicon over its pelvic mesh products, a consumer advocacy group said this week.
Corporate Action Network, which according to its website was "founded to address the imbalance of power between corporations and people," issued an open letter to Holder calling for the investigation into the documents’ destruction. A federal magistrate judge found earlier this year that Ethicon lost or destroyed documents in the multi-district litigation over its pelvic mesh devices, which are designed to treat pelvic organ prolapse and stress urinary incontinence in women.
Magistrate Judge Cheryl Eifert of the U.S. District Court for Southern West Virginia found that, although Ethicon did destroy or lose "documents that should have been preserved in anticipation of this litigation," "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," according to court documents.
"On the other hand, the court finds that plaintiffs are entitled to monetary sanctions to compensate them for the additional time spent by their counsel piecing together missing custodial files and preparing for depositions of key employees for whom scant information was provided by Ethicon. In addition, the undersigned recommends to the presiding district judge that plaintiffs be permitted on a case-by-case basis to introduce evidence of spoliation at trial, when appropriate, and seek an adverse instruction in specific cases," Eifert wrote. Johnson & Johnson has asked that juries not be told about the lost or destroyed documents.
The Corporate Action Network said that Holder should harness the U.S. Justice Dept.’s subpoena powers to investigate Johnson & Johnson and chairman & CEO Alex Gorsky, who oversaw the Ethicon division when the documents were lost or destroyed.
"The magistrate’s decision was necessarily based solely on the filings in the civil case. The Department of Justice, of course, has the authority to conduct a comprehensive and thorough investigation of the full extent of the document destruction, and it should do so," according to the letter, sent to Holder by CAN president Mark Fleischman. "We respectfully request that you investigate Johnson & Johnson Inc. and its top executives including chairman and CEO, Alex Gorsky, for 2 possible criminal violations."
"The magistrate found that the destruction of documents goes as far back as 2007 by Johnson and Johnson’s wholly owned subsidiary Ethicon that created the pelvic mesh implants. Alex Gorsky, the current Chairman and CEO of Johnson and Johnson, was the head of that very subsidiary beginning in 2008, and Gorsky has continued to oversee that subsidiary ever since that time, which includes the time that the destruction of documents occurred," Fleischman wrote.
The letter also cited the case of Dr. Vincent Lucente, who reportedly received about $800,000 over 10 years as as consultant for J&J. Lucente allegedly sought to influence whether treatment with Ethicon’s pelvic mesh was deemed experimental by medical publications and the American College of Obstetricians & Gynecologists. The letter also mentioned investigations into other pelvic mesh makers by the attorney’s general of several states.
Johnson & Johnson won the 1st bellwether trial in the Ethicon MDL last month, after Judge Joseph Goodwin tossed the case out of court. Pelvic mesh makers including Ethicon, C.R. Bard (NYSE:BCR), Boston Scientific (NYSE:BSX), Endo Health Solutions (NSDQ:ENDP), Cook Medical and Coloplast (CPH:COLO B) are facing tens of thousands of lawsuits over their respective mesh offerings.