New Brunswick, NJWith transvaginal mesh lawsuits underway, alleging patients suffered injury as a result of transvaginal mesh complications, lawsuits for the plaintiffs argue that the defendants lost or destroyed vital files related to the lawsuits. Some transvaginal mesh side effects lawsuits involve Johnson & Johnson’s Ethicon unit, maker of the Gynecare Prolift vaginal mesh.
Bloomberg (12/3/13) reports that lawyers for the plaintiffs allege officials at Ethicon lost or destroyed possibly hundreds of thousands of documents related to transvaginal mesh litigation. The documents allegedly went missing over the course of a decade. Filings from the plaintiffs’ attorneys argue the defendants could potentially benefit from the lost documents as they could create gaps in the plaintiffs’ stories.
The plaintiffs’ Motion for Sanctions argues that the loss or destruction of the documents was not limited to one employee but was “a systematic failure at all levels.”
“As a result, Ethicon has produced numerous important witnesses who worked there for several years and have few, if any, documents in their custodial files,” lawyers for the plaintiffs argue. “In 2010, seven years after a litigation hold had been instituted, Ethicon removed all information from the hard drive of its outgoing worldwide president, Renee Selman.”
A spokesperson for Ethicon said the company did not intentionally destroy any documents. But lawyers for the plaintiff argue that regardless of why the information was lost or destroyed, and whether the loss was willful or negligent, Ethicon is still responsible for the failure and should be subject to a default judgment against the company in the first bellwether case to go to trial (plaintiff Carolyn Lewis). Furthermore, the lawyers request the judge strike any statute of limitation defense at every trial, charge the defendants for reasonable costs and fees associated with the motion of sanctions and issue a spoliation instruction to the jury at every bellwether trial.
“Because Plaintiffs have the burden of proof, the less information Defendants provide, the more difficult it becomes for Plaintiffs to meet their burden to the Court and the jury.”
Earlier this year, a state court found in favor of the plaintiff in a transvaginal mesh lawsuit and awarded her $11 million. The lost document motions are in relation to federal lawsuits, which are set to go to court in February 2014.
Ethicon is not the only company to face allegations about transvaginal mesh issues. Other companies, including C.R. Bard Inc and Boston Scientific also face lawsuits. One of the CR Bard bellwether lawsuits is set to begin in January 2014.
The lawsuit is In Re Ethicon Pelvic Repair System Products Liability Litigation, 12-MD-02327, US District Court, Southern District of West Virginia.
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