J&J’s Ethicon unit, which made Gynecare Prolift and TVT Retro-pubic meshes, lost or destroyed thousands of documents (amounting to more than 600 pounds) as well as computer files relevant to the development of the devices as far back as 2007, said a U.S. magistrate judge Cheryl Eifert in an order entered last month in federal court in Charleston, West Virginia. Thousands of transvaginal mesh lawsuits are consolidated in Charleston.
Judge Eifert’s finding came before J&J faced its first trial in West Virginia, which began on Feb. 10. During the trial, Johnson & Johnson employees testified that Johnson & Johnson destroyed thousands of pages from files pertaining to its transvaginal-mesh implants which thousands of women contend have led to injuries.
Judge won’t let Jury see Evidence
Despite the destruction of the records, Judge Goodwin, who oversaw that first trial, refused to instruct the jury that the documents destroyed by J & J could be seen as J & J’s hiding damaging information regarding the safety of its TVT mesh, the product at question in the trial. Plaintiff’s lawyers charged that the TVT Retropubic sling, which was designed to support women’s internal organs, eroded and shrank over time, causing pain and injuries to the Plaintiff. J &J still faces more than 12,000 federal-court claims over the TVT Retropubic sling and its other transvaginal-mesh products.
J & J admits its own Failure
Magistrate Eifert also noted that Ethicon officials acknowledged their document-retention system “failed miserably in certain instances” to properly preserve transvaginal-mesh files. Eifert 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. Goodwin allowed plaintiffs to give the general information about the document destruction to the jury, but he did not give the jury any instruction to indicate they could presume that the documents destroyed would have been harmful to J & J’s defense of its TVT mesh.
Judge rewards J&J for Illegal Actions
Magistrate Eifert’s report said there was no evidence Ethicon officials deliberately sought to keep transvaginal-mesh files out of court; but what does that matter? It was illegal for J & J to destroy those documents once the company had been put on notice of the lawsuits – and J & J had been put on notice of lawsuits on more than one occasion before destroying the documents. In the first trial, Goodwin took the teeth out of J & J’s document destruction by refusing to give the jury any instruction regarding Ethicon’s “accidentally” destroying 600 pounds of relevant files. Judge Goodwyn’s ruling hence rewarded Johnson & Johnson for breaking the law by not allowing jurors to draw their own conclusions about that lawbreaking. If Goodwyn had ruled to let the evidence in, which is the only ruling that makes sense, especially given that the documents were unlawfully destroyed, Johnson lawyers could always have argued to the jury that the destroyed evidence would have exonerated the company, and that the company was as chagrined as the plaintiff that relevant evidence was destroyed.Otherwise, how can a company be allowed to defy a court’s instructions and then not only not be punished but be rewarded by never even letting a jury hear the simple FACTS OF THE CASE?
Johnson & Johnson Serial Lawbreaker
The destruction of documents related to ongoing mesh litigation seems seven less accidental when one looks at a recent laundry list of Johnson & Johnson’s breaking laws meant to protect U.S. citizens from the voracious material appetites of corporations like J &J. Other instances of Johnson & Johnson unethical and even potentially criminal activity abound:
• Johnson & Johnson agrees to pay $2.2 billion in drug-marketing settlement – Washington Post
• Johnson & Johnson to pay $70 Million for Bribes, Kickbacks – to settle with SEC & DOJ
• Johnson & Johnson illegally destroyed Transvaginal Mesh Evidence