Plaintiffs in the multi-district pelvic mesh litigation against Johnson & Johnson‘s (NYSE:JNJ) Ethicon subsidiary want a federal judge to impose "severe sanctions" for the company’s alleged mishandling and destruction of 10s of thousands of documents in the case.
"Defendants Ethicon Inc. and Johnson & Johnson have lost, destroyed, or disposed of 10s of thousands, if not 100s of thousands, of documents and other evidence containing information vital to this litigation," the plaintiffs allege, according to court 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 of the U.S. District Court for West Virginia.
Yesterday the plaintiffs in the Ethicon MDL asked Goodwin to impose "severe sanctions" for allegedly losing or destroying the documents.
"Defendants’ spoliation of evidence was systematic and continual over the last 10 years. It was not limited to 1 employee, to a set of employees, or to a department. Instead, it was a systematic failure at all levels, from Ethicon’s sales personnel to its president. As a result, Ethicon has produced numerous important witnesses who worked there for several years and have few, if any, documents in their custodial files. In 2010, 7 years after a litigation hold had been instituted, Ethicon removed all information from the hard drive of its outgoing worldwide president, Renee Selman," according to the documents. "Given Ms. Selman’s role as a high-level decision-maker at Ethicon, her hard drive surely contained vital information about Ethicon’s policies, safety procedures, marketing strategies, and numerous other key issues. All of that information is gone. Ms. Selman testified that she was aware of the litigation hold, she believed that it applied to the entire [tension-free vaginal tape] family of products, she knew not to delete relevant documents, and she followed procedures closely, placing documents in properly designated folders. But Ethicon has only produced about 25 documents for Ms. Selman, a remarkably low number for someone who was head of the company for five years, and has admitted that it destroyed all documents that Ms. Selman has saved on her hard drive."
Selman was Ethicon’s worldwide president for women’s health & urology from 2005 to 2010.
The plaintiffs want Goodwin to declare a default judgment in their favor in some of the bellwether cases in the Ethicon MDL. They also ask that he 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 want the statute of limitations defense off the table for all of the Ethicon MDL cases, according to the documents.
"As there is there no question that Ethicon destroyed important evidence, the law requires a remedy. The proverbial slap on the hand is not enough, for it would only incentivize these and other defendants to do the same. Rather, plaintiffs respectfully suggest that when spoliation is as systematic, and as harmful to the other side, as it has been in this litigation, then the appropriate remedy is a default judgment against the spoliator," according to court records. "Specifically, plaintiffs request default judgments against Ethicon in the Lewis case, and in the initial bellwether TVT-O and Prolift cases. In all cases, the court should strike Ethicon’s learned intermediary defense and give a spoliation instruction to the jury. The court should also strike any statute-of-limitations defenses in all cases, and should charge Ethicon with the reasonable costs and fees associated with this motion."