EMLEY et al v. WAL-MART STORES, INC. et al

Filing 331

SCHEDULING ORDER ON PLAINTIFFS' MOTION FOR SANCTIONS - Plaintiffs Motion for Sanctions [Dkt. 327] in all other respects is stayed pending completion of the trial, except for the requests that Perrigos answer be stricken or a default judgment entered against Perrigo, which we deny. (See Order for details.) Signed by Judge Sarah Evans Barker on 1/24/2020.(NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DONNA EMLEY,
DENNIS EMLEY,

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Plaintiffs,
v.
WAL-MART STORES, INC.,
L.N.K. INTERNATIONAL, INC.,
L. PERRIGO COMPANY,
Defendants.

No. 1:17-cv-02350-SEB-TAB

SCHEDULING ORDER ON PLAINTIFFS’ MOTION FOR SANCTIONS
This matter arises from Plaintiff Donna Emley’s injuries allegedly resulting from
her ingestion of Equate acetaminophen, manufactured by Defendants L. Perrigo
Company (“Perrigo”) and L.N.K. International (“L.N.K.”) and sold by Defendant WalMart Stores, Inc. (“Wal-Mart”). At the forefront of the parties’ dispute is whether
Defendants should have included a skin reaction warning on the labeling of their
acetaminophen products pursuant to state products liability laws. On June 27, 2019, we
denied Defendants’ motions for summary judgment on the basis of preemption, rejecting
Defendants’ averments that they were “impossibly preempted” by federal law from
complying with state law labeling requirements prior to the issuance of FDA guidance in
November 2014 (the “Guidance”). 1 [Dkt. 199]. The factual question persists as to

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The Guidance stated that the FDA “does not intend to object to the marketing of products
containing the following warning language:”
Allergy alert: Acetaminophen may cause severe skin reactions. Symptoms may include:
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whether it was reasonable for defendants to omit the skin reaction warning from their
products’ labels.
On January 17, 2020, Plaintiffs Donna and Dennis Emley filed their Motion for
Sanctions against Defendant Perrigo “based upon Perrigo’s substantial and prejudicial
abuse of discovery[.]” [Dkt. 327]. Plaintiffs’ motion, in short, details the following
chronology of alleged discovery transgressions.
On April 25, 2018, Plaintiffs received Perrigo’s responses to Plaintiffs’ first
requests for production, in which they sought all documents (including e-mails) reflecting
any communications within Perrigo, or between Perrigo and others, relevant to Perrigo’s
decision to change its acetaminophen label to include the disputed skin reaction warning.
Perrigo produced no emails responsive to Plaintiffs’ request. Claiming to have found this
“highly unusual,” Plaintiffs sent a Rule 37-1 letter requesting supplemental responses. In
response, Perrigo confirmed that it had previously produced all relevant documents.
On July 9, 2018, Defendant Wal-Mart produced numerous e-mails regarding the
modification of the Equate acetaminophen label. Many of these emails included Perrigo
employees, yet, according to Plaintiffs, Perrigo itself had not disclosed them as requested.
Counsel for Perrigo indicated that the nondisclosure was inadvertent, assuring Plaintiffs
that an exhaustive search would be conducted to ensure that all relevant communications

• Skin reddening
• Blisters
• Rash
If a skin reaction occurs, stop use and seek medical help right away.
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were disclosed. The parties thereafter resolved this issue among themselves and moved
on with the litigation.
However, in or around October 2019, Plaintiffs’ counsel, while reviewing
discovery documents received in a separate matter involving similar facts but different
manufacturers, located two additional e-mails on which Perrigo employees’ names were
included. The e-mails were dated as received in August 2013, which, from Plaintiffs’
perspectives, establishes that the FDA extended an opportunity to Perrigo to participate in
a coordinated voluntary label change process to include the skin reaction warning.
According to Plaintiffs, these emails directly undercut the preemption defense pursued by
Perrigo throughout this litigation—namely, that Perrigo could not legally have altered its
label prior to the FDA’s Guidance issued in 2014. This defense has been included in
Perrigo’s summary judgment motion, its petition to certify our summary judgment order
for interlocutory appeal, and its pending motion to reconsider our order denying
certification. Plaintiffs also assert that the recently discovered emails undermine Perrigo’s
factual defense that it reasonably feared FDA’s enforcement action against it if it
voluntarily changed its acetaminophen label.
Plaintiffs believe these e-mails were intentionally concealed by Perrigo because
they would be detrimental to both Perrigo’s factual and legal defenses. Compounding
Plaintiffs’ concerns is the deposition testimony of Perrigo’s corporate representative,
Valerie Gallagher, who, despite her name appearing on the newly discovered emails, has
testified that Perrigo could not have voluntarily changed its product’s label prior to the
issuance of the FDA Guidance in 2014. Plaintiffs’ concerns extend to include the opinion
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of one of Perrigo’s regulatory compliance experts, Dr. Andrea Leonard-Segal, whose
analysis apparently relied on Ms. Gallagher’s deposition testimony as well as the
purported nonexistence of any notice from the FDA that voluntary changes would be
permitted prior to its 2014 Guidance.
We are informed that the parties have met and conferred on this issue on multiple
occasions, including with the assistance of Magistrate Judge Baker on January 13, 2020,
but have been unable to reach a resolution that is satisfactory to all parties. According to
Plaintiffs, Perrigo has acknowledged that “the subject e-mails should have been located
through the agreed upon ESI [electronically stored information] search, and also that the
e-mails are discoverable and highly relevant to their defenses.” Plaintiffs also note that
the emails should have been retained pursuant to Perrigo’s own retention policy; in fact,
other emails from the relevant timeframe were produced.
Plaintiffs request that the Court impose “the most severe sanctions,” including
entry of a default judgment against Perrigo or an order striking Perrigo’s answer.
Alternatively, Plaintiffs request the following: that Valerie Gallagher be produced in the
capacity of Perrigo’s corporate representative for a second deposition; the Perrigo
representatives whose names appear on the subject e-mails conduct a thorough search of
all their e-mail programs (past and present) in an effort to locate any and all additional
relevant e-mails, including the subject e-mails and responses thereto, and produce all emails uncovered through this renewed search to Plaintiffs (and certify under oath that the
search has been completed and detail the actions taken to effectuate the search); Dr.
Andrea Leonard-Segal be excluded from testifying as an expert in this; Perrigo pay all
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costs and fees incurred by Plaintiffs due to its concealment of the emails (including those
incurred in preparing for Ms. Gallagher and Dr. Leonard-Segal’s depositions); and a
spoliation charge be given to the jury at trial. Plaintiffs have expressly stated that they
prefer that their Motion for Sanctions not interfere with or require a postponement of the
upcoming March 2, 2020 trial, asking that we “reserve ruling on any issues that would
delay the trial of the case.”
In light of the apparent materiality of the allegedly concealed (or at least not
disclosed) e-mails and the time exigencies associated with the upcoming trial, the Court
hereby imposes the following schedule:
1) Valerie Gallagher shall be produced to testify in her capacity as corporate
representative for Perrigo for a second supplemental deposition at the earliest
feasible date prior to the February 18, 2020 final pretrial conference.
2) No later than February 1, 2020, Valerie Gallagher, AJ Shannon, David Mason,
Heidi Horn, and Devon Morgan shall undertake another search of their e-mail
programs (past and present) to locate all relevant e-mails, including the recently
uncovered e-mails and responses thereto, and shall immediately produce to
Plaintiffs all e-mails located, certifying under oath by affidavit the actions taken to
conduct the search and that their search has been completed.
3) When and as Perrigo produces any newly discovered e-mails to Plaintiffs, it shall
provide such e-mails, in addition those underlying Plaintiffs’ Motion for
Sanctions, to its expert, Dr. Leonard-Segal, to allow her to amend her expert report
in light of the new materials.

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Plaintiff’s Motion for Sanctions [Dkt. 327] in all other respects is stayed pending
completion of the trial, except for the requests that Perrigo’s answer be stricken or a
default judgment entered against Perrigo, which we deny.
IT IS SO ORDERED.

Date:

1/24/2020

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Richard M. Barnes
GOODELL, DEVRIES, LEECH & DANN, LLP
[e-mail]
Bonnie J. Beavan
GOODELL DEVRIES LEECH & DANN LLP
[e-mail]
Nicholas Gene Brunette
REMINGER CO. LPA (Indianapolis)
[e-mail]
Charles Andrew Childers
CHILDERS, SCHLUETER & SMITH, LLC
[e-mail]
Brett T. Clayton
REMINGER CO. LPA (Indianapolis)
[e-mail]
Neil Edwards
CHILDERS, SCHLUETER & SMITH, LLC
[e-mail]
Jeff S. Gibson
WAGNER REESE, LLP
[e-mail]
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Sean L. Gugerty
GOODELL DEVRIES LEECH & DANN LLP
[e-mail]
Katherine M. Haire
REMINGER CO. LPA (Indianapolis)
[e-mail]
Logan C. Hughes
REMINGER CO., LPA - College Park
[e-mail]
Haley Johnston
FROST BROWN TODD LLC (Indianapolis)
[e-mail]
Matthew Reed King
FROST BROWN TODD LLC (Indianapolis)
[e-mail]
Jonathan Andrew Knoll
COHEN & MALAD LLP
[e-mail]
Gregory L. Laker
COHEN & MALAD LLP
[e-mail]
Mary Nold Larimore
ICE MILLER LLP (Indianapolis)
[e-mail]
Shevon Rockett
GOODELL DEVRIES LEECH & DANN, LLP
[e-mail]
Kevin C. Schiferl
FROST BROWN TODD LLC (Indianapolis)
[e-mail]

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