Our defective medical device law firm is very interested in issues related to the ongoing series of lawsuits against makers of vaginal mesh. The mesh is a medical device used in surgery to correct pelvic organ prolapse, generally in older women. After women across the United States began experiencing serious injuries and pain from the implants, thousands of lawsuits have been filed against several makers of vaginal mesh. These include the Ethicon unit of Johnson & Johnson, maker of the Gynecare Prolift implant. But attorneys for injured women allege that Ethicon lost, failed to preserve or actively destroyed hundreds of thousands of documents that they were ordered to preserve, Bloomberg News has reported. The attorneys are seeking a court order sanctioning Ethicon for that conduct.
The dispute came in the multi-district litigation against Ethicon over the Gynecare Prolift implant. The 30,000 cases are consolidated in West Virginia federal court. “Bellwether” cases intended to give the litigants an idea of how the claims will fare in court are slated to begin in February. As the parties prepare for that, pharmaceutical liability attorneys made their allegations in a Dec. 2 court filing. They said Ethicon employees were ordered to preserve the documents, but still managed to lose or destroy them. This will leave the plaintiffs in these cases substantially worse off, the attorneys said, by creating “gaps” in their stories. Ethicon argues that it had never intentionally destroyed or withheld documents, and that there was no problem for plaintiffs created by “any isolated instances where documents may have inadvertently not been maintained.”
Vaginal mesh implants have led to a huge number of lawsuits because they have been implanted in thousands of American women—yet had almost no scrutiny from federal regulators. That’s because their approval was “fast tracked,” meaning they were considered similar enough to an existing device that they didn’t need to be tested extensively. Some were approved as similar to an earlier vaginal mesh product that was recalled. Others piggybacked on the approval of surgical mesh for other areas of the body. Unfortunately, reports began coming in of mesh that eroded into the flesh around where it was implanted, causing chronic pain, intrusion into other areas and sometimes urinary incontinence. After initially saying that problems were rare, the FDA has more recently admitted that problems are not rare. It also said there’s no clear advantage to using the mesh in prolapse surgery, which had been routinely done without mesh prior to the 1990s.
I hope the judge in charge of the Ethicon multi-district litigation carefully considers some kind of sanction for the destruction of these documents. It’s difficult to believe that employees who were specifically asked to save certain documents managed to “inadvertently” lose them instead. Companies that are very competent in other areas of business should be viewed with suspicion if they become incompetent when faced with a dangerous medical device lawsuit. As a remedy, the attorneys are asking the court to bar Ethicon from dismissing cases based on some women having missed the deadline to sue. If granted, this would be a huge advantage for plaintiffs, who often lose their chance to pursue cases because of these deadlines.
Carey, Danis & Lowe represents clients across the United States who have suffered serious injuries or lost a loved one because of a defective or unsafe medical device. To tell us about your case and learn more about your rights, call us today at 1-877-678-3400 or send us a message online.
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