By Jef Feeley(Feb 5, 2014 3:22 PM CT)
Johnson & Johnson (JNJ) improperly destroyed files about some vaginal-mesh implants and may have to let juries weighing lawsuits over the devices hear evidence about the destruction, a court official said.
J&J’s Ethicon unit, which made Gynecare Prolift and TVT Retropubic meshes, lost or destroyed thousands of documents and computer files about the development of the devices from as far back as 2007, Cheryl Eifert, a U.S. magistrate judge in Charleston, West Virginia, concluded yesterday. Suits over the devices are consolidated there for pre-trial hearings.
The finding comes as J&J prepares to face its first trial Feb. 10 in West Virginia over claims the TVT Retropubic sling, used to support women’s internal organs, eroded and shrank over time, causing pain and injuries. J&J, based in New Brunswick, New Jersey, is facing more than 12,000 federal-court claims over the TVT Retropubic and its other vaginal-mesh inserts.
Ethicon officials acknowledged their document-retention system “failed miserably in certain instances” to properly preserve vaginal-mesh files, Eifert said. She recommended that U.S. District Judge Joseph Goodwin, who is overseeing the consolidated cases, allow women suing J&J to tell jurors about the loss of documents if they can show the destruction put them at a disadvantage.
“While Ethicon produced millions of pages of documents in the MDL, it did inadvertently fail to preserve some documents, many of which were available elsewhere” in files that were turned over to women suing over the implants, Matthew Johnson, an Ethicon spokesman, said today in an e-mailed statement.
In her report, Eifert said there was no evidence Ethicon officials deliberately sought to keep vaginal-mesh files out of court. They documents were destroyed after employees left the company as part of Ethicon’s file-management system, she said.
Still, Eifert found Ethicon officials were negligent in their mishandling of the files and should be punished by allowing some juries to hear about the document destruction. The magistrate’s recommendations must be reviewed by Goodwin before they become final.
The consolidated case is In Re Ethicon Pelvic Repair System Products Liability Litigation, 12-MD-02327, U.S. District Court, Southern District of West Virginia (Charleston). The case set for trial Feb. 10 is Lewis v. Johnson & Johnson, 12-cv-04301, U.S. District Court, Southern District of West Virginia (Charleston).
To contact the reporter on this story: Jef Feeley in Wilmington, Delaware at firstname.lastname@example.org