Taylor v. Johnson & Johnson, Inc. et al

Filing 289

ORDER (Order re: Motion for Sanctions for Spoliation) denying 124 MOTION by Charlene Logan Taylor for Sanctions for the Spoliation of William Martin's Custodial File, as more fully set forth herein; the Court directs the Clerk to post a copy of this published opinion on the court's website, www.wvsd.uscourts.gov. Signed by Judge Joseph R. Goodwin on 10/6/2016. (cc: counsel of record; any unrepresented party) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:

ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2327
______

THIS DOCUMENT RELATES TO:

Charlene Logan Taylor v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-00376

ORDER
(Order re: Motion for Sanctions for Spoliation)
Pending before the court is the plaintiff’s Motion for Sanctions for the
Spoliation of William Martin’s Custodial File [ECF No. 124], which was filed on April
4, 2016. For the reasons given below, the plaintiff’s Motion is DENIED.
I.

Background
The issue of Ethicon’s spoliation in this MDL was previously evaluated by

United States Magistrate Judge Cheryl A. Eifert in Pretrial Order No. 100 (“PTO No.
100”), Civil Action No. 2:12-md-2327 [ECF No. 1069], in response to a motion for
sanctions filed on behalf of all plaintiffs in this MDL. Relevant here, Judge Eifert
found that Ethicon had a duty to preserve information contained in certain sales
representatives’ custodial files, that Ethicon breached its duty to preserve the
information, and that the files contained some relevant evidence. PTO No. 100 at 23,
26, 33. Judge Eifert, however, determined that the record before her did “not support
a finding that Ethicon, or any employee of Ethicon, acted willfully or intentionally to

delete, discard, or hide evidence.” Id. at 31. Judge Eifert stated “there is no proof that
Ethicon destroyed evidence specifically for the purpose of preventing its disclosure in
this litigation.” Id. at 31–32. Judge Eifert determined that any prejudice suffered by
the plaintiffs did not warrant the extreme sanctions sought in the underlying motion,
such as entering a default judgment, striking defenses, or issuing an adverse
inference instruction to the jury. Id. at 40–43. Judge Eifert left open the possibility
that a plaintiff, on a case-by-case basis, may present circumstances warranting the
introduction of spoliation evidence at trial and an adverse jury instruction.
The plaintiff in this case, Ms. Taylor, seeks nearly identical sanctions for
nearly identical conduct. Specifically, the plaintiff argues that Ethicon failed to
properly preserve the custodial file for William Martin, a sales representative for
Ethicon. According to the plaintiff, Ethicon failed to preserve electronically stored
information from Mr. Martin’s company-issued devices and failed to preserve
documents and a sample mesh kit that Mr. Martin kept in a storage locker. Mem.
Supp. Mot. 3–4 [ECF No. 125]. The plaintiff argues that this information is relevant
to proving the “failure to warn” theory of her case and that without the information,
the plaintiff “lacks information regarding which marketing materials, literature,
pamphlets, brochures, and kits were used, relied on, and distributed by Mr. Martin
to Plaintiff’s treating physician.” Id. at 12. The plaintiff requests that the court
sanction Ethicon by (1) striking Ethicon’s learned intermediary defense, (2) striking

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all defenses relevant to the Louisiana Products Liability Act1 (“LPLA”), (3) striking
any statute of limitations defenses, and (4) providing an adverse inference jury
instruction. Id. at 13–14.
II.

Legal Standard
Spoliation of evidence refers to “the destruction or material alteration of

evidence or the failure to preserve property for another’s use as evidence in pending
or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590
(4th Cir. 2001) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.
1999)). The duty to preserve evidence arises “not only during litigation but extends
to that period before the litigation when a party reasonably should know that the
evidence may be relevant to anticipated litigation.” Id. at 591 (citing Kronisch v.

United States, 150 F.3d 112, 126 (2d Cir. 1998)). A party under a duty to preserve
information should “identify, locate, and maintain information that is relevant to
specific, predictable, and identifiable litigation.” Victor Stanley, Inc. v. Creative Pipe,

Inc., 269 F.R.D. 497, 522 (D. Md. 2010) (citation omitted).
When a party breaches its duty to preserve evidence, it may face sanctions
under Rule 37 of the Federal Rules of Civil Procedure or through the court’s inherent
authority “to control the judicial process and litigation.” Id. at 517 (quoting Goodman

v. Praxair Servs. Inc., 632 F. Supp. 2d 494, 505–06 (D. Md. 2009)). Generally,

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The plaintiff’s claims are based on the products liability laws of Louisiana.

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sanctions for spoliation are appropriate when the moving party establishes the
following:
(1) [T]he party having control over the evidence had an obligation to
preserve it when it was destroyed or altered; (2) the destruction or loss
was accompanied by a “culpable state of mind;” and (3) the evidence that
was destroyed or altered was “relevant” to the claims or defenses of the
party that sought the discovery of the spoliated evidence, to the extent
that a reasonable factfinder could conclude that the lost evidence would
have supported the claims or defenses of the party that sought it.

Thompson v. United States Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D. Md.
2003)).
The spoliation of electronically stored information, however, is specifically
governed by Rule 37(e) of the Federal Rules of Civil Procedure.
If electronically stored information that should have been preserved in
the anticipation or conduct of litigation is lost because a party failed to
take reasonable steps to preserve it, and it cannot be restored or
replaced though additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than
necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent
to deprive another party of the information’s use in the
litigation may:
(A) presume that the
unfavorable to the party;

lost

information

was

(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e) (as amended effective December 1, 2015).
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The court has broad discretion when selecting a sanction for spoliation;
however, “the applicable sanction should be molded to serve the prophylactic,
punitive, and remedial rationales underlying the spoliation doctrine.” Silvestri, 271
F.3d at 590 (quoting West, 167 F.3d at 779). “Because the [court’s] inherent power is
not regulated by Congress or the people and is particularly subject to abuse, it must
be exercised with the greatest of restraint and caution, and then only to the extent
necessary.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993).
III.

Discussion
The court begins its discussion by pointing out that the spoliation of Mr.

Martin’s custodial file occurred before Judge Eifert entered PTO No. 100, and Ethicon
does not deny that spoliation occurred with regard to Mr. Martin’s custodial file. In
other words, the plaintiff is not alleging that Ethicon continued to spoliate evidence
after the issuance of PTO No. 100, but she is now seeking additional, case-specific
sanctions based on an inquiry left open by Judge Eifert’s Order. See Reply 14 [ECF
No. 163] (“Furthermore, Judge Eifert held that Plaintiffs are permitted to seek an
adverse instruction in specific cases.”). Judge Eifert recommended that “Plaintiffs be
permitted on a case-by-case basis to introduce evidence of spoliation at trial, when
appropriate, and seek an adverse instruction in specific cases.” PTO No. 100 at 2.
Judge Eifert’s accompanying footnote stated the following:
For example, in a case in which a Plaintiff establishes a prima facie
claim of failure to warn, Plaintiffs may be permitted to introduce
evidence that Ethicon destroyed the call notes of the sales
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representative who provided information to Plaintiff’s implanting
physician.

Id. at 2 n.1.
The plaintiff, however, is not simply requesting an adverse jury instruction at
trial as a sanction for Ethicon’s failure to preserve Mr. Martin’s custodial file, she is
seeking the type of “extreme sanctions” that Judge Eifert easily found to be
unjustified in PTO No. 100. Id. at 40–41. The plaintiff even asks the court to strike
Ethicon’s statute of limitations and learned intermediary defenses, which, as Judge
Eifert pointed out, “are two of the most severe sanctions available to the court.” Id. at
39. The plaintiff is clearly attempting to gain a second bite at the apple with her
Motion. After a review of all of the plaintiff’s supporting documents, the court FINDS
that the plaintiff has failed to demonstrate how her circumstances are different or
more condemnable than those already addressed by Judge Eifert. Accordingly, the
court INCORPORATES and ADOPTS Judge Eiferts factual findings and legal
conclusions pronounced in PTO No. 100. The plaintiff’s Motion regarding her request
for certain sanctions for the spoliation of non-electronically stored information is
DENIED. Rule 37(e) of the Federal Rules of Civil Procedure, however, was
substantially amended after Judge Eifert’s ruling—taking effect December 1, 2015—
so the court will examine the plaintiff’s Motion with regard to the spoliation of
electronically stored information under the amended rule.2

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Pursuant to the Supreme Court’s Order amending Rule 37, the amended rule applies retroactively.

See Supreme Court Order, April 29, 2015, https:// www.supremecourt.gov/orders/courtorders/
frcv15(update)_1823.pdf (“[T]he foregoing amendments to the Federal Rules of Civil Procedure shall

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In order to warrant sanctions under Rule 37(e), which concerns only
electronically stored information, certain threshold elements must be established: (1)
the information should have been preserved, (2) the information was lost, (3) the loss
occurred because a party failed to take reasonable steps to preserve it, and (4) the
information cannot be restored or recovered through additional discovery. The court
accepts that the first three elements are satisfied here. As for the fourth element,
Ethicon argues that certain emails and electronic documents—such as Mr. Martin’s
training materials, marketing literature, and emails to supervisors—have been
produced from sources other than Mr. Martin’s custodial file, thus making them
recoverable through other discovery. For the purpose of dispensing with the plaintiff’s
Motion, however, the court will presume that the fourth element is satisfied here
because the plaintiff has sufficiently demonstrated that all of the records have not
been restored or recovered by other means.
Assuming the elements are satisfied, Rule 37(e) next establishes two different
avenues parties can take to demonstrate that sanctions are warranted—each having
its own final elements that must be established. The first avenue, Rule 37(e)(1),
requires a court to make a finding of prejudice before sanctions may be warranted.
The second avenue, Rule 37(e)(2), requires a court to make a finding that a party
acted with the intent to deprive the opposing party of the relevant information before
certain severe sanctions are warranted.

take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter
commenced and, insofar as just and practicable, all proceedings then pending.” (emphasis added)).

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The court begins by discussing Rule 37(e)(2), which is often more difficult to
demonstrate. Rule 37(e)(2) makes clear that the plaintiff is not entitled to an adverse
jury instruction or entitled to any presumptions regarding the spoliation of
electronically stored information unless the court makes a finding that “the party
acted with the intent to deprive another party of the information’s use in the
litigation.” Fed. R. Civ. P. 37(e)(2). Judge Eifert has already determined that
“Ethicon’s loss of evidence was negligent, not willful or deliberate.” PTO No. 100 at 1.
The plaintiff’s supporting Memorandum provides no evidence that Ethicon’s conduct
regarding its poor handling of the electronically stored information in Mr. Martin’s
custodial file was intentional. Instead, the plaintiff flagrantly misrepresents Judge
Eifert’s conclusions with the following assertion: “[Mr. Martin’s] deposition is a
stunning example of Ethicon’s intentional destruction of pertinent, relevant
documents which the Court has already noted in its Order.” Mem. Supp. Mot. 2 (citing
PTO No. 100). The plaintiff does not cite to any part of Mr. Martin’s deposition that
demonstrates Ethicon’s intent to deprive her of the information’s use in the litigation,
and the plaintiff does not offer any other evidence that demonstrates that Ethicon or
its employees specifically set out to deny her access to the information. The court
FINDS that the plaintiff has simply not offered any evidence of intent that
demonstrates an adverse jury instruction is warranted.
Turning now to Rule 37(e)(1), the court may “order measures no greater than
necessary to cure” any prejudice that it finds a party has suffered due to the loss of
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information. Fed. R. Civ. P. 37(e)(1). The court accepts the plaintiff’s contention that
she was burdened by the loss of the information in Mr. Martin’s custodial file, as she
had to piece together information from other sources to try to recover relevant
documents. Even so, “[m]ost of the information that was lost were [sic] e-mail
communications and other incidental records. Certainly, this type of evidence can be
quite useful in enhancing a case, but is generally not necessary to prove most product
liability claims.” PTO No. 100 at 42. Ethicon has provided the plaintiff with over 1,000
emails to or from Mr. Martin, and Mr. Martin testified that he never created call logs
to document his interactions with treating physicians. Finally, all of the training
materials used to educate Mr. Martin and the marketing literature Mr. Martin used
were all created by Ethicon and disclosed to the plaintiff. The plaintiff has not
provided the court with any concrete evidence of prejudice to her case as a whole. In
PTO No. 100, Judge Eifert granted the plaintiffs’ motion with regard to monetary
sanctions against Ethicon, and the court FINDS that the plaintiff in this case has
failed to demonstrate that further sanctions against Ethicon are warranted under
Rule 37(e)(1) or otherwise.
IV.

Conclusion
For the reasons provided above, the plaintiff’s Motion for Sanctions for the

Spoliation of William Martin’s Custodial File [ECF No. 124] is DENIED.

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The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party. The court further DIRECTS the Clerk to post a copy of
this published opinion on the court’s website, www.wvsd.uscourts.gov.
ENTER:

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October 6, 2016