Plaintiffs’ lawyers handling thousands of transvaginal mesh cases filed in West Virginia have proven their contention that Johnson & Johnson (J&J) mishandled thousands of documents necessary for the pending litigation. Now what?
Cheryl Eifert, a U.S. Magistrate judge from Charleston, W.V. ruled this week that the healthcare giant improperly lost or destroyed thousands of documents, emails, files and videotapes. Attorneys had asked for sanctions and for an automatic ruling in their pending four bellwether cases. Instead Judge Eifert says that evidence should go before jurors to let them decide whether the loss of documents puts the Plaintiffs at a disadvantage.
The ruling comes just in time for the first federal case putting transvaginal mesh and the company on trial. February 10 will be jury selection and opening arguments in this multidistrict litigation that has more than 15,000 Ethicon cases ( a unit of J&J) pending before Judge Joseph R. Goodwin.
In this case, plaintiff Carolyn Lewis was implanted with the Prolift +M as well as the American Medical Systems Monarc Subfascial Hammock. The pelvic mesh products contain monofilament polypropylene mesh, says the complaint.
Altogether there are more than 50,000 defective product cases involving transvaginal mesh filed before Judge Goodwin. They were consolidated in Multidistrict litigation in 2012 to minimize conflicting pre-trial rulings and to coordinate discovery.
How could a company lose documents? It appears J&J routinely rotated people among top executive spots such as the head of Women’s Health & Urology and the Global Medical Director. They were then reassigned within the company and sometime after, their computer hard drives, emails and documents were destroyed.
Eifert’s ruling reminds us there was a litigation hold on documents within the company beginning in 2003 when the first transvaginal mesh injury case was filed.
For its part Ethicon, a unit of J&J, says it did provide million of pages of documents for this litigation but did “inadvertently fail to preserve some documents, many of which were available elsewhere,” reports BusinessWeek.
We will be watching to see to what extent Judge Goodwin allows the jurors to hear evidence of document mishandling.