Part I: Destroying Valentine’s Day
Two weeks ago was Valentine’s Day— a holiday that is supposed to be full of romance and heartfelt encounters with those you love. For many lucky people, Valentine’s Day was exactly that this year. Countless couples across the country could be seen on dates, filling restaurants, theaters, and dance-halls to capacity. Recent winter storms inspired hot tubbing rendezvous and even spontaneous trips to various resorts, hotels, and beaches, where an amorous evening awaited.
However, for many women this year, February 14th was a far cry from a joyous occasion. It was like all their other recent days—full of pain, discomfort, and bleeding. As a result, the holiday seemed only to mock them. These women were in too much pain to enjoy any kind of intimate evening, and too infected to even think about putting on a swimsuit for a night of hot tubbing. For these women, it seemed Valentine’s Day, which was originally named after a martyr, had reverted back to its traditional meaning—a day representing, not romance, but suffering and sacrifice.
The pain that these women are experiencing is due to surgical pelvic mesh devices that were designed, manufactured, marketed, and sold by a variety of companies, including Ethicon Inc. (hereinafter “Ethicon”), a subsidiary of Johnson & Johnson. The devices are pretty much what they sound like—pieces of mesh implanted pelvically in women. These devices are also referred to as pelvic slings, vaginal slings, and transobturator slings, and are intended to treat stress urinary incontinence and especially pelvic organ prolapse, which can occur in women after birth or surgery. Unfortunately, instead of helping women, some of the devices have only added to the women’s sufferings.
Women who have been injured by these surgical mesh devices have rightfully initiated legal proceedings against Ethicon and other manufacturers of pelvic mesh devices. The multidistrict litigation is still ongoing. The plaintiffs in these actions have mostly complained about two specific product lines: TVT and Prolift. The plaintiffs state that the devices erode internal vaginal tissue, causing bleeding and infection. As if that isn’t enough, plaintiffs are now faced with the cost of surgically removing the devices, or the worse alternative—leaving the devices in and inevitably facing even further injury.
The plaintiffs allege design defects, manufacturing defects, negligence, failure to warn, and breach of express and implied warranties. By now, so many women have been hurt by these faulty products, that literally thousands of additional cases have been joined in the pelvic mesh multidistrict litigation since its initiation.
If you have been injured by any brand of pelvic mesh, including Ethicon, you are welcome to call us for a free consultation. You may be entitled to financial compensation for your pain and suffering and for any medical expenses you incur due to the mesh.
Part II: Destroying Implicating Documents
A lot of us kept diaries or journals when we were teenagers. Now, if your family was anything like mine growing up, you know that keeping a journal is a risky business. After all, a teenager’s journal often proves tempting bait for snooping siblings and concerned parents.
Whenever I was concerned that prying eyes would read something I would prefer to keep private, I would either (1) rip out the particularly incriminating journal entries and destroy them somehow; or (2) hide them somewhere I thought no one would ever look, with the plan to tape them back into my journal later, after the coast was clear. Sometimes when I went with this second option, I hid the journal entries so well that when I genuinely tried to find the pages later, I couldn’t.
Ethicon, the company that sold faulty pelvic mesh devices, recently found itself in a similar, yet much more serious situation. Due to the vast amount of cases filed against Ethicon, Ethicon’s in-house counsel issued a “Hold Notice” directing employees to preserve all documents pertaining to the TVT and Prolift product lines, as well as other products involved in the ongoing litigation.
Plaintiffs claimed that after the duty to preserve evidence had been triggered, defendant Ethicon lost or destroyed tens of thousands of documents that likely contained information relevant to plaintiffs’ claims. If the missing records are anything like my journal entries, I’m guessing the conveniently missing documents were ones that did not paint Ethicon in a good light.
On February 4th, a federal magistrate judge ruled that Ethicon destroyed or lost documents that should have been preserved in anticipation of litigation involving its pelvic mesh devices. The judge also found that Ethicon’s loss of evidence was negligent, rather than willful or deliberate.
Like my journal entries, whether Ethicon deliberately destroyed the documents, or lost them due to its own negligence, the outcome is the same: The documents are gone. As a result, the judge found that plaintiffs are entitled to monetary sanctions to compensate them for the additional time spent by their counsel piecing together missing custodial files and preparing for depositions of key employees for whom scant information was provided by Ethicon. (In Re: Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, MDL Docket No. 2327, No. 2:12-md-2327, S.D. W.Va.; See 12/5/13, Page 9).
Further, the federal magistrate judge recommended allowing trial judges to instruct juries to find an adverse inference for missing evidence. Id. An “adverse inference” instruction tells the jury members that they are allowed to assume that the missing documents were in fact harmful to Ethicon’s case.
By destroying, losing, or “losing” documents, Ethicon has shown that it has just as little regard for the plaintiffs’ valuable time, as it does for their injuries. Our law firm, on the other hand, cares a great deal about the pain and inconvenience people have endured due to pelvic mesh. If you have had complications with a pelvic mesh device, we would be honored to work on your behalf, and hope that you will call us for a free consultation.