In a complex product liability case, the plaintiff must usually engage in extensive discovery of the manufacturer’s records. The development of many consumer products, such as automobiles, medical devices, drugs and even household appliances can take years to evolve and get ready for final placement on the market. This can also involve wide-ranging communications between researchers, engineers, doctors, company officials and other parties engaged in the evolutionary development of the product for sale. This is certainly true of a suspected faulty medical device marketed in West Virginia and nationwide.
In early February 2014, a United States District Court Judge in Charleston will begin to hear 30,000 consolidated cases of women plaintiffs suing manufacturers of a vaginal mesh implant. The women complain that the defective medical device caused them immeasurable pain and discomfort. A good chunk of the litigation is against Johnson & Johnson, perhaps the largest producer of this faulty medical device.
It is claimed that the products deteriorate inside the body and sometimes pieces of it tend to migrate into other areas of the victim’s body. This can cause damage to bodily organs. With respect to discovery of Johnson & Johnson records, the company admits that officials allowed up to hundreds of thousands of documents to be neglectfully destroyed despite being told to preserve them.
When the defendant does not cooperate with discovery the plaintiff can file a motion for sanctions against that defendant. Sanctions can take many forms, and can be molded at the discretion of the trial judge. In the vaginal mesh cases, the plaintiffs are stressing that a “proverbial slap in the face” is not enough.
The plaintiffs are asking the West Virginia federal court judge to turn down motions against certain plaintiffs who may have filed late or against others who may have one or more procedural deficits against them. That is certainly one way to penalize a defendant who has engaged in serious abuse of the discovery process. In the most egregious cases, the court may even enter judgment against a defendant in a faulty medical device case or other cases where the defendant has intentionally tried to sabotage the plaintiff’s case.
Source: Bloomberg Businessweek, J&J Lost or Destroyed Vaginal-Mesh Files, Lawyers Contend, Jeff Feeley, Dec. 4, 2013