Johnson & Johnson‘s (NYSE:JNJ) Ethicon subsidiary faces sanction after a magistrate judge in West Virginia found that the medical device company destroyed evidence in the multi-district litigation filed over its pelvic mesh products.
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.
The plaintiffs 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.
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.
"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.
The plaintiffs have 30 days to submit a tally of the sanction amount, she wrote. Ethicon then has 20 days to respond, Eifert wrote, followed by a 10-day window for the plaintiffs to reply. The court will then determine whether a hearing is needed, according to the documents.