Ethicon Inc., a subsidiary of Johnson & Johnson and manufacturer of TVT-O and Prolift transvaginal mesh, has been accused of destroying or losing tens of thousands of documents during a 10-year period in violation of a court order. In a motion for sanctions filed in the District Court for the Southern District of West Virginia, Plaintiffs allege that Ethicon systematically and continually destroyed the documents of outgoing employees at all levels and documents that were more than two years old despite a litigation stay instituted in 2003. Plaintiffs are seeking default judgments in their first TVT-O and Prolift bellwether trials, spoliation instructions to the jury at every other bellwether trial, and costs and fees. The Plaintiffs also seek to prohibit Ethicon at any trial from raising defenses based on the learned intermediary doctrine or any statute of limitations.
According to the motion and evidence filed by the Plaintiffs’ Steering Committee (PSC), Ethicon destroyed documents from the custodial files of its worldwide president, chief medical officer, global medical director, vice president of global strategic marketing, and many of the sales representatives in the upcoming bellwether trials. Under management direction, Ethicon deleted the computer hard drives of outgoing employees unless the employee took steps to prevent it, despite Ethicon’s ongoing duty to preserve all evidence for discovery in the litigation. Ethicon’s employees apparently had no uniform understanding of which documents needed to be preserved. Ethicon also destroyed several instructional videos that contradicted the position of one of its expert witnesses in the litigation. Ethicon also are unable to locate roughly 600 pounds of documents provided to it by the now-defunct original manufacturer of its TVT-O mesh.
In addition to the systematic destruction of documents, the spoliation was caused by Ethicon’s lack of internal oversight of procedures for preserving documents. Ethicon failed to implement a written policy regarding document retention and did not create a centralized litigation hold folder until 2007. Ethicon learned through a 2002 internal audit that its document retention procedures were inadequate, yet waited five years to institute corrective action. In support of the motion, Plaintiffs submitted testimony from an Ethicon corporate representative as well as numerous Ethicon documents.
The motion for sanctions was filed on behalf of all Plaintiffs with cases pending in In re Ethicon, Inc., Pelvic Repair System Products Liability Litigation, the Multidistrict Litigation (MDL) venued in the U.S. District Court for the Southern District of West Virginia. Judge Joseph Goodwin has scheduled a bellwether trial involving an Ethicon TVT stress urinary incontinence in early February 2014.
If you need more information on this subject, contact Leigh O’Dell, who is handling the TVM Litigation for our firm, and who is on the PSC in the MDL, at 800-898-2034 or by email at Leigh.Odell@beasleyallen.com.
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