Just days before the first transvaginal mesh bellwether trial against Johnson & Johnson’s Ethicon subsidiary is set to begin in federal court in West Virginia, the magistrate judge overseeing discovery in the litigation ruled that the company improperly destroyed documents. On February 4, the court issued an order finding that Johnson & Johnson had a duty to preserve all documents and files related to the transvaginal mesh lawsuits, but failed to satisfy this duty with regard to numerous documents and files that were destroyed or lost by the company.
According to the court’s order, Johnson & Johnson’s efforts to preserve documents were ‘riddled with holes’ and ‘failed miserably in certain instances.’
In ruling against Johnson & Johnson, the court noted that the obligation to preserve evidence arises when “litigation is reasonably anticipated.” If a company fails to do so, a court may impose sanctions ranging from monetary penalties to prohibiting the company from making certain arguments at trial.
According to the court’s order, Johnson & Johnson’s efforts to preserve documents were “riddled with holes” and “failed miserably in certain instances.”
As reported by Bloomberg News, the court’s order states that the judge may allow jurors deciding the mesh cases to hear testimony regarding Johnson & Johnson’s destruction of documents. If this testimony is admitted at trial, the judge may instruct the juries that they are allowed to reasonably infer that the documents destroyed by Johnson & Johnson would have been detrimental to the company’s defense of the lawsuits.
In a future ruling, the court will decide the amount of monetary sanctions that Johnson & Johnson will be required to pay.
There are currently over 11,000 lawsuits pending against Johnson & Johnson’s Ethicon division, which manufactured the Gynecare Prolift and TVT Retropubic meshes. These cases have been filed by women who have suffered serious complications after being implanted with the company’s transvaginal mesh devices while undergoing surgery to repair pelvic organ prolapse.
In March of last year, a jury in a state court in New Jersey awarded $11 million in damages to a woman who was implanted with Ethicon’s Gynecare Prolift mesh.
The first federal bellwether trial is set to begin on Monday, February 10 at 8:30 AM.
As the trial gets underway, we will see how this recent ruling affects the outcome of the litigation.