Johnson & Johnson seeks to bar evidence of lost docs from pelvic mesh bellwether

February 10, 2014 by Brad Perriello

Johnson & Johnson wants a judge to keep the plaintiff in a pelvic mesh liability lawsuit from using evidence that it lost or destroyed thousands of documents in the multi-district litigation.

Johnson & Johnson seeks to bar evidence of lost docs from pelvic mesh bellwether

Johnson & Johnson (NYSE:JNJ) subsidiary Ethicon is facing sanction after a magistrate judge in West Virginia found that the medical device company lost or destroyed evidence in the multi-district litigation filed over its pelvic mesh products, wants to prevent a plaintiff from telling a jury about the snafu.

Plaintiffs in the case last year asked the U.S. District Court for Southern West Virginia to impose "severe sanctions" for Ethicon's alleged mishandling and destruction of 10s of thousands of documents. Johnson & Johnson, C.R. Bard (NYSE:BCR), Boston Scientific (NYSE:BSX), Endo Health Solutions (NSDQ:ENDP), Cook Medical and Coloplast (CPH:COLO B) are facing thousands of product liability and personal injury lawsuits over their respective pelvic mesh devices used to treat female urinary incontinence. Cases against the companies have been consolidated into multi-district litigation under Judge Joseph Goodwin.

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The plaintiffs in the Ethicon case wanted the court to declare a default judgment in their favor in some of the bellwether cases in the Ethicon MDL. They also asked that the court prevent the defendants from using the "learned intermediary" defense, in which a manufacturer argues that the duty of care is fulfilled when all necessary information is imparted to a "learned intermediary" who then interacts with the consumer. And they wanted the statute of limitations defense off the table for all of the Ethicon MDL cases, according to the documents.

Last week Magistrate Judge Cheryl Eifert 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.

That ruling prompted Ethicon to ask Judge Joseph Goodwin to bar plaintiff Carolyn Lewis from telling the jury in her bellwether lawsuit about the lost or destroyed documents, according to the documents.

"Although Judge Eifert also suggested that evidence regarding Ethicon's inadvertent loss of documents may be permitted at trial where there is evidence that documents relevant to a specific plaintiff's claims were lost, this is not such a case. Ms. Lewis is proceeding solely on a theory of design defect, and Judge Eifert's ruling makes clear that Ethicon produced relevant documents on design issues from central files," Ethicon argued, according to the documents. "Moreover, even if Ms. Lewis were alleging claims based on failure to warn, Ethicon has produced responsive documents from the files of the sales representative who covered the territory that included Ms. Lewis' physician. This case should be tried on the merits of Ms. Lewis' claims – not plaintiffs' irrelevant spoliation allegations. And plaintiffs should not be allowed to circumvent Judge Eifert's denial of an adverse inference by introducing irrelevant, highly prejudicial evidence about Ethicon's loss of documents at trial."

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