The Honorable Jim Hood

June 12, 2014

By Facsimile: 601-359-3441 / 601-359-4231

The Honorable Jim Hood

Attorney General

Mississippi Attorney General’s Office

Walter Sillers Building

550 High Street, Suite 1200

Jackson, MS 39201

Dear Attorney General Hood,

As survivors of pelvic mesh implants and Mississippi taxpayers, we request that your office immediately begin investigating whether Johnson & Johnson should be held liable for expenses incurred by the state as a result of dangerous and defective pelvic implants.

Johnson & Johnson is the largest producer of pelvic mesh implants in the world. This product is creating a health crisis among women across the state of Mississippi, which in turn is resulting in significant costs to the state’s public health systems.

Specifically, we ask for you to investigate Johnson & Johnson and its Chairman Alex Gorsky for possible violation of section 74-24-5 of the Revised Code of Mississippi for deceptive and fraudulent business for their knowledge of the danger of the mesh implants and the public health systems’ costs to the taxpayers of Mississippi.

This request follows the recent revelation by a West Virginia court that Johnson & Johnson destroyed numerous documents relevant to lawsuits filed against the company by thousands of women across the United States who have been seriously injured by the company’s pelvic mesh implants.[1]

It is critical that the Mississippi Attorney General’s Office pursue this matter to recoup the state taxpayer dollars Medicaid and other public health systems have been and will be forced to spend to treat women who have been injured. Action by the state attorney general will also demonstrate that a major U.S. corporation should not destroy evidence in judicial proceedings. The destruction of this evidence undermines our ability as Mississippi women who have been hurt by Johnson & Johnson to receive justice.

Background

In the last few years, medical device manufacturers including Johnson & Johnson have come under fire for marketing dangerous medical devices, drugs and other consumer products, often without receiving proper regulatory approval. Many of these companies, including Johnson & Johnson, have paid billions of dollars in fines in litigation and settlement costs and made repeated pledges of reform, yet continue to display an indifferent attitude toward the harm they have caused as well as a willingness to evade the law.

Currently, Johnson & Johnson faces thousands of product liability lawsuits relating to the company’s pelvic mesh implants, marketed most commonly as treatment for pelvic organ prolapse and stress urinary incontinence. There are estimated to be hundreds of thousands of women that have been – and continue to be – implanted with these dangerous products. Women have suffered severe pain and injuries due to ineffective and dangerous implants.

Investigations into the pelvic mesh products produced by several companies, including Johnson & Johnson, date back to before October 20, 2008, when the FDA first issued a Public Health Notification.[2]

Beginning in March 2005, Johnson & Johnson sold one of its most popular devices, the Gynecare Prolift, without alerting the Food and Drug Administration for three years. When the FDA was made aware of the Prolift device, the agency informed Johnson & Johnson that the device required government approval.[3] In May 2008, the Prolift was cleared for sale under the 510(k) process under the claim of “substantial equivalence” to devices already on the market. It had never been rigorously tested nor demonstrated effective in clinical trials.[4]

Further indicating Johnson & Johnson knew how harmful pelvic mesh implants were but nevertheless continued marketing the defective product to unsuspecting women, the company destroyed thousands of documents regarding the implants. Although top company executives initially denied it, a magistrate judge found that Ethicon, a wholly owned subsidiary of Johnson & Johnson that manufactured the implants, destroyed documents pertaining to their effectiveness and safety as far back as 2007.[5] Alex Gorsky, the current Chairman and CEO of Johnson & Johnson, was named head of Ethicon in 2008, before most of the documents were destroyed, and has continued to oversee it in his climb through the company’s ranks.[6]

Apparent Violation of Law

Johnson & Johnson and its CEO Alex Gorsky may be in violation of Section 74-24-5 of the Revised Code of Mississippi for deceptive business practices concerning both his corporation’s knowledge of the inherent danger of the mesh implants as well as the document destruction.

The Mississippi Attorney General’s Office has the authority to conduct a comprehensive and thorough investigation into whether Johnson & Johnson, in the course of advertising, soliciting, selling, promoting and distributing pelvic mesh implants, has engaged in a course of trade or commerce that constitutes unfair or deceptive acts or practices, and is therefore unlawful under the Mississippi consumer protection laws by misrepresenting the safety of pelvic mesh implants.

Johnson & Johnson also may have violated Mississippi Case Law pertaining to destroying physical evidence in an official proceeding. In Tolbert v. State, the Court held “it is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator.”[7] Mississippi remedies for destruction of evidence include criminal penalties or disciplinary actions against attorneys who participate in spoliation.[8]

After initial denials by top executives and their counsel, it is now clear that Johnson & Johnson destroyed thousands of documents related to Ethicon’s development and marketing of pelvic mesh implants.[9]

The fact that Johnson & Johnson conducts business throughout Mississippi and the one of its lead defense firms, Butler and Snow, is based in the state, only adds to the importance of your office pursuing this matter.

Johnson & Johnson is one of the world’s largest corporations whose products are used not only by women but also children and men. This investigation is urgently needed as the lives and safety of so many women in Mississippi and across the United States depend on it.

Please do not hesitate to contact us if we can provide any further information. Thank you for your consideration.

Sincerely,

Suzanne McClain – Maben, MS

Felicia Pigg – Meridian, MS

Sarah Smith – Enterprise, MS

Kimberly Brown – Tupelo MS

Lorrie Jones – Ocean Springs MS

Mississippi survivors of pelvic mesh implants.