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Ethicon Pelvic Mesh Trial Underway in Philadelphia Exposes Document Destruction by J&J

Philadelphia Court of Common Pleas

Philadelphia Court of Common Pleas

Mesh News Desk, December 8, 2015 ~ OPENING ARGUMENTS

Opening arguments got underway for Philadelphia’s first pelvic mesh trial last week.

Patricia Hammons, 64, filed her product liability action against Johnson & Johnson and its subsidiary Ethicon over her Prolift pelvic mesh implant, used to treat a condition known as bladder prolapse. Initially filed in multidistrict litigation in Charleston, WV, it was remanded to court in Philadelphia two years ago.

Patricia L. Hammons v Secant Medical, Ethicon, in the Philadelphia Court of Common Pleas,  Case No.  2:13-cv-04086. Secant is the maker of a component of the polypropylene mesh implant. 

Shanin Specter, Kline Specter

Shanin Specter, Kline Specter

Attorney Shanin Specter (Kline & Specter, Philadelphia) said the Prolift pelvic mesh implant has too much mesh which causes scar tissue, mesh contraction and erosion.  The amount of mesh could stretch across two-and-a half football fields, he said. Hammons suffers mesh erosion into her bladder and “excruciating” pain during sex or dyspareunia. The mesh was found to have folded under her bladder and repeated surgeries have caused a shortened vagina.

This case was filed in the Philadelphia Court of Common Pleas and is being heard before Judge Mark I. Bernstein. Attorney Adam Slater of Mazie Slater is also trying the case. Slater won the first Prolift case ever tried in Atlantic City in 2013. Linda Gross was awarded $11.1 million. That case is still under appeal.

prolift box 200THE PLAINTIFF

Hammons is from Indiana and works at Wal-Mart as a stocker.  She alleges her product was negligently designed and that J&J failed to warn doctors about the risk of the Prolift.  She was implanted in 2009 after which she had numerous surgeries to fix her prolapse after the Prolift reportedly failed. The mesh has reportedly adhered to her bladder and cannot be removed after numerous attempts.

Specter showed the jury the blue and white mesh that comes in a box pre-cut along with its stainless steel hooks or trocars used for implantation. He also criticized the mesh for having pores too small that cause excess scarification or scar growth. Scar tissue tends to contract and can take with it nerves, causing chronic pain.  Ethicon had no idea how to remove the mesh if it caused complications, Specter told jurors.

This is the first of 181 cases filed in that venue, according to The Legal Intelligencer (here). Ethicon is facing additional cases filed in state courts around the country including New Jersey, California and Missouri as well as 30,163 product liability cases filed in the consolidated multidistrict litigation court in Charleston, WV. See the case list here.

Susan M. Robinson, Thomas Combs & Spann

Susan M. Robinson, Thomas Combs & Spann

Talking to the jurors for Ethicon was attorney Susan M. Robinson of Thomas, Combs & Spann. She said Ethicon brought the mesh to market on the advice of doctors and there are risks associated with any of these pelvic mesh products.  She insists the mesh is not defective and it worked properly.

The attorney blamed pain during sex on the plaintiff’s hysterectomy she underwent in 2009 and additional prolapsing of her small bowel and uterus.  Prolift had nothing to do with the fact she later developed the bowel prolapse, she said.

This trial has been limited to two weeks by Judge Mark I. Bernstein.

DOCUMENT DESTRUCTION REVEALED 

Those who follow coverage of the pelvic and hernia mesh issue remember that two years ago, the court determined Johnson & Johnson had destroyed thousands of pages of documents that were under a litigation hold in preparation for this product liability litigation. See the MND story here and here.

The outcome was inconclusive with WV Chief Magistrate Cheryl Eifert saying that spoliation (document destruction) had occurred but no adverse instructions would be given for every trial, in part, because no one could be identified as the perpetrator.  See PTO#100 Doc #1069, Feb. 4, 2014

It was deemed to be a setback for the plaintiffs’ attorneys who had to piece together portions of discovery. Part of what was lost were inner-office emails, personal computers of J&J executives as they were  moved to new positions within the company, the potential conflict of interest payments to mesh inventor Drs. Ulmsten and  Nilsson who retrofitted hernia mesh to fit a  woman’s pelvis. See MND story on what else was lost December 8, 2014 here.

The issue was never raised again.

Until now.

Adam Slater, Mazie, Slater

Adam Slater, Mazie, Slater

James P. Mittenthal was the designated corporate representative to testify on the subject. In the Philadelphia courtroom, his 2014 deposition was played.  Under questioning by attorney Adam Slater, Mittenthal admitted ten-thousand documents had been destroyed by the company.  J&J did it’s best to preserve documents and the destruction was unintentional, he said.

His deposition was taken for Lewis v. Ethicon, but never appeared to jurors before the trial ended in a directed verdict for the defense.  See Lewis V. Ethicon MND coverage here.

LEWIS CASE –  DO NOT  DESTROY DOCUMENTS

In the Lewis case, Slater showed Mittenthal a document entitled Johnson & Johnson law department document preservation notice not to destroy specified documents.

j&j LOGOIt said “Do not discard, destroy, or alter in any way any of the documents, electronic or paper, described below.” The notice was issued May 22, 2003 by the Johnson & Johnson law department to preserve papers and documents in connection with current or future litigation.

A company-wide hold notice for mesh documents was issued April 30, 2007.  Mr. Mittenthal said actually since 2003 there had been a defined policy. The employee is provided with a checklist and, along with their manager, they go through it to make sure “the departing employee’s obligations are complied with prior to his or her leaving the company, and that includes records retention or obligations.”

The policy has now been revised to take into account technology, he said. “

For my last question,” said Slater, “… you don’t expect people to actually tell you they did that (destroy documents) in direct violation of a policy right?”

 A: I ask at every interview if information was destroyed.  I have spent several years now looking at this company and have understood the climate by which information is managed, the information, the systems in place, and the general attitude and demeanor of the employees. And I have no reason to believe that anyone has withheld information from me or been false with me.”

Q: “There’s no way for you to know, for you to know what happened, right?”

A: “There’s no way for me to be absolutely certain. I would agree with you.”

 

PROLIFT OFF THE MARKET

Prolift, and three other pelvic meshes made by Ethicon, were quietly removed from the market in mid-2012 shortly after the U.S. Food and Drug Administration required mesh manufacturers to begin conducting three-years of post- approval studies on mesh products.

Philly.com (here) reports there have been 16 mesh verdicts totaling $247 million and ultimately the exposure for J&J and the six other mesh makers could be in the billions.  The news outlet also reports that Philadelphia juries are “deemed sympathetic to plaintiffs.”

The first Prolift trial was that of Linda Gross of South Dakota and conducted by attorney Slater in state court in New Jersey. The $11.1 million jury verdict is still on appeal.  The trial of another woman implanted with a Prolift mesh, Joan Budke,  was settled just before it went to the jury in January of this year.  Mrs. Budke died of mesh-related infections.  #

LEARN MORE:

 

 Law 360 on loss of Key Documents, December 2013

http://www.law360.com/articles/492626/j-j-unit-accused-of-losing-key-docs-in-vaginal-mesh-mdl

 

19 Comments

  1. Susan Geiner says:

    still nothing happening with the New Jersey cases.

    • Jane Akre says:

      As far as I know there are TVT cases on the calendar for January 11 in Bergen Co. … This is Bergen County New Jersey, sorry I wasn’t clear. Can you be there????

  2. Tammy Ky says:

    Thanks Jane

  3. Linda says:

    Are there dates for the trial in Bergen Colo? I am in NM and am interested in attending

  4. K says:

    I understand the Ethicon attorneys are doing there job and this isn’t their fault. I blame the manufacturers and the FDA! However, I could never defend someone I knew was Harming people. I would rather live in a tent in the cold winter because NO amount of money would be worth that. I don’t believe for a second they think Ethicon is innocent and they are definitely crossing the line blaming the doctors that are our only hope. I blame the judges as well. They could stop all of this by allowing the evidence submissible and stop letting them delay trials like the 36 that was scheduled for December. This would end quickly if they would truly move these cases forward. I think most scheduled in 2016 will be delayed as well. Judge Goodwin, would you advise your wife to have mesh implanted? We all know that answer. Show us some compassion and FDA save these women considering mesh.

  5. K says:

    Jane, thank you for all YOU do for all of us! i pray many blessings for you and your family for giving of yourself and time to this tragedy!

  6. anna says:

    This manufactures aren’t fools they bring in their female defense lawyers to try to convince the jurors, that women have not been hurt by their products. It looks better than a man saying he doesn’t think their product caused any damage to the plaintiff, well a good presentation is better than the reality of the actual destruction. Its like a beautiful desert that taste like sh….t.

  7. Toni says:

    I had 85% of my mesh removed I have had major issues with its since did tests to find cause haven’t heard yet but sono showed my bladder is now not emptying and causing issues with kidneys been 7 months now any help out there what I may be facing next been through 4 surgeries was told in 06 by doc my quality of life would be great after implanting TV and provide hell Pro lift never submitted to FFS then . How can they get away with this. We deserve to be taken care of but they protect the ones who harm us for profit. How is this being covered up. Why won’t the media come to our aid.

  8. Debbie Edwards says:

    Hi K, I agree with about everything you said. BUT NOT about Judge Goodwin, he has to cross his T’s and dot his I’s…..J&J have very deep pockets and are able to keep this going for years. I am sure Judge Goodwin is making sure there is NOTHING that can be contested. In my heart he is on the side of the law and is getting tired of the B.S. and is just covering all the bases. I am sure he doesn’t want any open ends for a miss trial out re-trial. Maybe I am old school, but I still believe in the justice system and I believe Judge Goodwin is doing his job. I so hope I did not offend you, but I think we need to believe!

    • K says:

      You didn’t offend me at all. I just think he should quit letting them move these trial dates. I do agree he is tired of this as well but he needs to make the defense try these cases scheduled and not let them postpone them. I really don’t think their deep pockets make a difference in why these cases are being postponed. Give them the warning no more postponing all cases will be tried unless it is a real emergency. Almost every trial has been moved by a few months if not more.

      • Janis Urban says:

        As frustrating and disappointing we all are with the progress the MDL is in setting trial dates and actually hearing the Cases. One must remember the massive size of this MDL. Judge Goodwin has a huge responsibility and it is probably the most challenging one in his years on the bench. His responsibilities include knowing the Statues of Law in Federal Court but also the Laws of each individual State where are cases were filed. Like our injures each of our cases are complex. I’m sure Judge Goodwin is doing everything he can within the law to see that this MDL proceeds in a timely forward movement. I hope he has a relaxing Holiday. His calendar for 2016 is filling up fast.

  9. Linda says:

    Ladies , most of us can’t make the trip so we need to support the cause. Truly this site is what keeps me from giving up. I know many of you feel the same way. It is costly to spend time away from home, living in a hotel, eating out and airfare. We need to pull together financially and support the cause. Jane can you do a go fund me page on this site for the trial attendance. We can’t let them close us out. That is exactly what they want. We keep one another going and we need this site. If each of us comes up with a contribution we can fund the trip. We need to get Jane in that court room!!!! We need the information out on this sight. Lets pull together. Will you go Jane if we can fund it?

    • Jane Akre says:

      What I really need to do is access the feed and transcripts to play catch up. Still working on doing that….. I appreciate the gesture, but so much as transpired already…

    • Don't give up says:

      I agree with you Linda it must get expensive to fly and stay at hotels and also very tiring Jane your peeps are here for you if need be I think it’s good that others are thinking this way,to support you in going to sit in on these trials Jane as it would show the defence that no matter what they might try we will not go away.The injuries you all have from mesh are permanent and your followers who need to know what’s going on in these cases are permanent just to let you know.

      • Jane Akre says:

        I actually enjoy going to a trial, but it is expensive. I’ve used credit card points in the past. Am usually pretty selective about which ones to cover because of the cost. I would like to rely on those of you who can be court watchers, take light notes and tell me what’s happening in the trial. Any help I appreciate.

  10. Dee says:

    Hi Jane,

    Thanks for all you do for us! Would you please explain the significance of pretrial order 131 Severance of Action in the Boston Scientific litigation in West Virginia? Will this have any effect on those of us in MDL 2326 whose case included our husbands and loss of consortium? This is very confusing.

    • Jane Akre says:

      Here is PTO #131. I’m not a lawyer. Only sat in law school one day, for a contracts class. So my uneducated opinion is that there are multiple plaintiff complaints joined together because they have a common complaint- they were all implanted with a Boston Scientific mesh. Unless they object they will be dismissed and able to filed again in another court, likely state court. You will not be disadvantaged by a statute of limitations, the date will be your initial date you filed. You should really get a full interpretation from your law firm, because that is why they are making 40% off your case.

  11. Clay says:

    ALL IT WOULD TAKE IS FOR J&J TO MAN UP AND ADMIT THEIR FAULTS. BUT THAT WILL NEVER HAPPEN!!!!

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