It doesn't happen very often, but when it does, it's big news – and can have serious ramifications for the defendant.
It's when civil litigation leads to a criminal investigation. For example, if evidence in a wrongful death lawsuit indicates that the defendant acted willfully, and these actions led to the victim's demise, that defendant could wind up facing murder charges.
Johnson & Johnson, defendant in more than one transvaginal lawsuit, may not be wind up being charged with murder or manslaughter, but a prominent consumer advocacy group is calling on the U.S. Department of Justice to initiate a criminal investigation of the New Jersey-based pharmaceutical giant.
How did this happen?
It started a few months ago when the Honorable Cheryl Eifert, the judge assigned to oversee pre-trial hearings in the transvaginal mesh lawsuits against J&J's Ethicon division, found that the company had mistakenly destroyed documents relating to its TVT Retropublic mesh product. At that time, Judge Eifert stated that Ethicon had “failed miserably” in its lawful responsibility to preserve all records relating to the product. Judge Eifert made a recommendation to her colleague, Judge Joseph Goodwin (who is presiding over the consolidated transvaginal mesh lawsuit cases) that Ethicon's negligence in this matter be allowed into evidence if attorneys for the plaintiffs could demonstrate that the company's failure to preserve the documents was detrimental to their cases. However, she also expressed her belief that Ethicon's actions were the result of carelessness, not the result of a deliberate attempt to conceal evidence.
Jane Akre, who founded an Internet-based support group for those suffering from having these meshes implanted and have filed a transvaginal mesh lawsuit, disagrees. She told ABC News that the evidence clearly demonstrates that J&J was fully aware of the dangers. “They didn't care,” she says. She adds that “...women have killed themselves because the pain eclipses childbirth pain, it's that bad.”
Corporate Action Network is now calling on Attorney General Eric Holder to begin a criminal investigation in order to determine whether J&J is guilty of obstruction of justice by purposefully destroying documents. The investigation will also target J&J CEO, Alex Gorsky, who was formerly responsible for overseeing the various J&J divisions that manufacture medical equipment.
In response, a J&J spokesman insists that his division “acted appropriately and responsibly” and continues to claim that meshes represent the “gold standard” of treatment for stress urinary incontinence and pelvic organ prolapse (POP).
It may be useful for the former (a group of urogynecologists in Cincinnati, Ohio, recently published a press release discussing the safety and effectiveness of meshes for the treatment of stress urinary incontinence), but whether or not it should be considered a “gold standard” for treating the latter is highly debatable. It was certainly cheaper and more profitable for J&J; prior to the 1990s, the standard treatment for POP was corrective surgery. It was then that J&J started marketing meshes formerly used to correct hernias to surgeons as a more cost-effective alternative to sewing the organs back into place. Of course, several other manufacturers of medical devices decided to jump on the gravy train as well.
If justice is done, the litigation will cost them every dime of profit from mesh sales – and then some. Already, Coloplast, another manufacturer of pelvic meshes, has settled transvaginal mesh lawsuit cases against it to the tune of $16 million. Another bellwether trial against C.R. Bard is underway, and multi-district litigation against six other companies is proceeding in West Virginia.
If corporations are people, let them face the same penalties.
Learn more about Transvaginal Mesh lawsuits