According to a 30-page document filed in federal court in West Virginia on December 2, officials at Johnson & Johnson (J&J) have either lost or intentionally destroyed thousands of pages of documents that are essential to the upcoming transvaginal mesh product liability trials. J&J is facing nearly 13,000 cases that were consolidated in that court and bellwether trials are scheduled to begin in Charleston, West Virginia on February 10, 2014.
Ethicon, the unit of J&J that makes the Prolift mesh kit as well as the TVT-O (Transvaginal Tape Obturator) System, is the focus of many of the defective product claims.
According to the filing, an order was in place internally by the company to preserve the documents, but over the last decade, personal emails, documents and videotapes were destroyed. “Whether it was willful or negligent, Ethicon is culpable under the law,” says the document.
Among the documents destroyed, what happened to Renee Selman’s files is typical. Selman was the president of Ethicon’s Women’s Health and Urology division and when she left the company, all of the documents on her computer hard drive were destroyed. Likely this woman interacted with the Food and Drug Administration when it issued its first warning about transvaginal mesh in 2008. Ultimately the company handed over only 25 documents to the plaintiffs to prepare for litigation out of potentially thousands of pages that could be relevant to the claims.
So what would be a remedy? Obviously if Judge Joseph R. Goodwin does not make an example of this action, or lack of action, it could become the modus operandi for any large corporation that wants to avoid the glare of a jury and possible punitive sanctions.
Document #952, Plaintiffs’ Motion for a Finding of Spoliation and for Sanctions, asks for an even playing field. Spoliation is a legal term referring to the altering or destroying of documents. The document, filed in the Johnson & Johnson multidistrict litigation asks for:
1) Plaintiffs ask the Court to “grant default judgments to Plaintiff Carolyn Lewis, as well as the plaintiffs in the first TVT-O bellwether trial and the first Prolift bellwether trial.
2) Declare the Court will issue a spoliation instruction to the jury at every Ethicon bellwether
3) Strike the Defendant’s learned intermediary defense for every trial (learned intermediary is the doctor since the company only has a responsibility to inform the doctor not the patient and it’s the doctor’s job as the “learned intermediary” to inform the patient)
4) Strike any statute-of-limitations defenses for every trial
5) Charge Plaintiffs reasonable costs and attorney’s fees associated with this motion to the Defendant
The defendants should not benefit from the gaps they created, says the filing. Judge Goodwin is not only presiding over more than 41,000 cases now filed before him in federal court, but he must decide whether or not to make an example of Johnson & Johnson for failing to have in place a workable document preservation system. Stay tuned.