Mullins et al v. Johnson & Johnson et al

Filing 1507

MEMORANDUM OPINION AND ORDER (Order re: Ethicon's Motion to Dismiss Spoliation Claims) granting 892 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss Cause of Action for Intentional Spoliation of Evidence, as more fully set forth herein ; the plaintiffs' spoliation claims are DISMISSED without prejudice; and the Clerk is directed to post a copy of this published opinion on the court's website, www.wvsd.uscourts.gov. Signed by Judge Joseph R. Goodwin on 11/18/2016. (cc: counsel of record; any unrepresented party) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TERRESKI MULLINS, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-02952

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(Order re: Ethicon’s Motion to Dismiss Spoliation Claims)
Pending before the court is the defendants’ Motion to Dismiss Cause of Action
for Intentional Spoliation of Evidence [ECF No. 892]. The plaintiffs’ filed a Response
[ECF No. 933], and the defendants filed a Reply [ECF No. 991]. The Motion is now
ripe for adjudication, and for the reasons provided below, the Motion is GRANTED.
I.

Background
This case represents the consolidation of 31 out of nearly 28,000 cases filed

against Ethicon, Inc. and Johnson & Johnson (collectively “Ethicon”). The Ethicon
MDL is one of seven MDLs assigned to me related to pelvic mesh, collectively
encompassing nearly 58,000 cases. This action involves thirty-one West Virginia
plaintiffs who were implanted with Tension-free Vaginal Tape (“TVT”), a mesh
product manufactured by Ethicon to treat stress urinary incontinence (“SUI”). These
cases have been consolidated on all claims. See Pretrial Order No. 184 [ECF No. 25]

(“PTO”); Fourth Am. Docket Control Order [ECF No. 258].
On May 4, 2016, the plaintiffs filed a Motion for Leave to Amend Complaints
[ECF No. 461], requesting to add a claim for intentional spoliation of evidence.
Ethicon did not file a response, and on June 27, 2016, I entered an Order [ECF No.
821] granting the plaintiffs’ Motion for Leave to Amend.1 The plaintiffs subsequently
amended their complaints to include intentional spoliation claims, a recognized
stand-alone tort under West Virginia law. 2 Each plaintiff alleged intentional
spoliation in the same manner: “Spoliation. The factual and legal bases discussed and
cited in Plaintiffs’ Motion for Leave to Amend Complaints (ECF No. 461), especially
Exhibit M attached thereto, which was granted by ECF No. 821.” E.g., Am. Short
Form Compl. 5 [ECF No. 831]. In other words, each plaintiff incorporated and fully
relied on two documents—their Motion for Leave to Amend and Exhibit M attached
thereto—to lay out their allegations of intentional spoliation. 3 Each amended
complaint stated identical allegations regarding the intentional spoliation claim.

According to Ethicon, it failed to file a timely response because of “inadvertent oversight.” Mot.
Vacate 2 [ECF No. 858].
1

Ethicon’s Motion challenges the sufficiency of the spoliation allegations contained in each of the
thirty-one amended complaints.
2

According to the U.S. Supreme Court, “courts must consider the complaint in its entirety, as well as
other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
documents incorporated into the complaint by reference, and matters of which a court may take
judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also 5B
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004) (“The
court is not limited to the four corners of the complaint, however. Numerous cases . . . have allowed
consideration of matters incorporated by reference or integral to the claim, items subject to judicial
notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached
to the complaint whose authenticity is unquestioned; these items may be considered by the district
judge without converting the motion into one for summary judgment. These matters are deemed to be
a part of every complaint by implication.” (footnote omitted)).
3

2

Accordingly, this matter may be resolved with this singular Order.
Ethicon raises two arguments for dismissal. First, Ethicon argues that New
Jersey law applies to the plaintiffs’ spoliation claim because (1) West Virginia courts
apply the choice of law doctrine of lex loci delicti to tort claims and (2) most of the
spoliation occurred in New Jersey. Because New Jersey does not recognize intentional
spoliation as a stand-alone tort, Ethicon argues that the plaintiffs have not stated a
claim. Second, Ethicon argues that even if West Virginia law applies, the plaintiffs
have failed to articulate sufficient facts to state a claim. I will address each of these
arguments in turn.
II.

Legal Standard
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a

complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(1). As the Supreme Court reiterated in Iqbal, that standard “does
not require ‘detailed factual allegations’ but ‘it demands more than an unadorned,
the–defendant–unlawfully–harmed–me accusation.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A]
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555. A court cannot accept as true
3

legal conclusions in a complaint that merely recite the elements of a cause of action
supported by conclusory statements. Iqbal, 556 U.S. at 678. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
To achieve facial plausibility, the plaintiff must plead facts that allow the court to
draw the reasonable inference that the defendant is liable, and those facts must be
more than merely consistent with the defendant’s liability to raise the claim from
merely possible to probable. Id.
III.

Discussion
West Virginia recognizes intentional spoliation of evidence as a stand-alone

tort. Syl. pt. 9, Hannah v. Heeter, 584 S.E.2d 560, 564 (W. Va. 2003). “Intentional
spoliation of evidence is defined as the intentional destruction, mutilation, or
significant alteration of potential evidence for the purpose of defeating another
person’s recovery in a civil action.” Id. at syl. pt. 10. The tort of intentional spoliation
of evidence consists of the following elements:
(1) a pending or potential civil action; (2) knowledge of the spoliator of
the pending or potential civil action; (3) willful destruction of evidence;
(4) the spoliated evidence was vital to a party’s ability to prevail in the
pending or potential civil action; (5) the intent of the spoliator to defeat
a party’s ability to prevail in the pending or potential civil action; (6) the
party’s inability to prevail in the civil action; and (7) damages.

Id. at syl. pt. 11. 4 The West Virginia Supreme Court states, “Once the first six
elements are established, there arises a rebuttable presumption that but for the fact

4

While these proceedings have been consolidated and the plaintiffs have pooled their resources to

4

of the spoliation of evidence, the party injured by the spoliation would have prevailed
in the pending or potential litigation. The spoliator must overcome the rebuttable
presumption or else be liable for damages.” Id.
A.

Conflicts of Laws

In order to determine whether West Virginia’s intentional spoliation cause of
action applies to this case, I must first review West Virginia’s relevant conflicts of law
principles. “When exercising diversity jurisdiction, a federal district court must apply
the choice-of-law rules of the state in which it sits.” Cavcon Inc. v. Endress + Hauser,

Inc., 557 F. Supp. 2d 706, 719 (S.D. W. Va. 2008) (Copenhaver, J.); see also Klaxon
Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496 (1941) (deciding that the Erie
Doctrine applies to the forum state’s conflict of law principles). As this court sits
within West Virginia, I must apply West Virginia’s conflicts of law principles.
The Supreme Court of Appeals of West Virginia has stated that “[i]n general,
this State adheres to the conflicts of law doctrine of lex loci delicti.” Syl. pt. 6,

McKinney v. Fairchild Int’l, Inc., 487 S.E.2d 913, 915 (W. Va. 1997). Under that
doctrine, “the substantive rights between the parties are determined by the law of
the place of injury.” Id. at 922. Moreover, the West Virginia Supreme Court has
determined that “under the lex loci delicti choice-of-law rule, West Virginia procedure
applies to all cases before West Virginia courts.” Id.; see also Vest v. St. Albans

jointly file their amended complaints, I am mindful of the fact that each plaintiff must sufficiently
allege the necessary elements of intentional spoliation as applied to her respective underlying claim
in order to survive a motion to dismiss.

5

Psychiatric Hosp., Inc., 387 S.E.2d 282, 283–84 (W. Va. 1989) (“It is just as clear that
West Virginia procedure applies in all cases before West Virginia state courts . . . .”).
Further, the West Virginia Supreme Court has stated that “[t]he tort of intentional
spoliation of evidence is, in part, a procedural rule designed to protect local courts

from the deliberate destruction of evidence necessary to prosecute claims.” Williams
v. Werner Enter., Inc., 770 S.E.2d 532, 542 n.13 (W. Va. 2015) (emphasis added).
Ethicon argues that New Jersey law applies because the alleged spoliation did
not occur in West Virginia. Defs.’ Mem. Supp. Mot. Dismiss 3–4 [ECF No. 893].
Ethicon cites to an unpublished Fourth Circuit case—applying North Carolina law—
to support the position that “the place of the wrong is the locale in which the last act
by a defendant occurs which makes him liable in tort.” Id. at 3 (quoting Jordan v.

Shaw Indus., Inc., Nos. 96-2189, et al., 1997 WL 734029, at *3 (4th Cir. 1997)).
Ethicon states, “The last act by a defendant necessary to a claim of intentional
spoliation is the ‘willful destruction of evidence.’” Id. at 4. According to Ethicon,
because the alleged spoliation “primarily occurred in New Jersey,” that state’s law
should apply to the plaintiffs’ claims. Id. Ethicon, however, has completely misapplied
West Virginia law on this point.
As stated above, West Virginia law requires state courts to assess the
substantive rights between the parties by applying “the law of the place of injury.”

McKinney, 487 S.E.2d at 922 (emphasis added). According to the plaintiffs’
allegations, Ethicon’s spoliation negatively impacts their ability to prevail on their
6

underlying West Virginia product liability claims. Whether Ethicon spoliated
evidence in New Jersey or not, the injury is suffered in West Virginia. The reason
intentional spoliation of evidence is a tort at all in West Virginia is because
“[d]estroying evidence can destroy fairness and justice, for it increases the risk of an
erroneous decision on the merits of the underlying cause of action,” and “such highly
improper and unjustifiable conduct ought to be actionable.” Hannah, 584 S.E.2d at
572 (citation omitted).
Ethicon’s suggested result directly contravenes the West Virginia Supreme
Court’s focus on the place of injury and ignores the Court’s determination that a claim
of intentional spoliation of evidence is also a procedural rule designed to protect local
courts. See Williams, 770 S.E.2d at 542 n.13.
Because West Virginia’s choice of law principles require courts to apply the law
of the place of injury and because the West Virginia Supreme Court considers the tort
of intentional spoliation to be, in part, a procedural rule designed to protect local
courts, I FIND that the law of West Virginia applies to the plaintiffs’ intentional
spoliation claims.
B.

Failure to State a Claim

Ethicon next argues that the plaintiffs have failed to state a claim under West
Virginia law. 5 Of the seven elements needed to establish the tort of intentional

Ethicon and the plaintiffs rely heavily on determinations made by Magistrate Judge Eifert in
Pretrial Order No. 100. However, Judge Eifert’s ruling was assessed under the Federal Rules of Civil
Procedure and was not assessed as a stand-alone tort claim. Accordingly, I will not consider Judge
Eifert’s ruling in the context of Ethicon’s Motion to Dismiss. Instead, I will apply the legal standards
5

7

spoliation of evidence, Ethicon challenges the sufficiency of the plaintiffs’ allegations
as to only three of them: (1) the spoliator’s intent to defeat the plaintiffs’ claims, (2)
the evidence was vital to plaintiffs’ ability to prevail, and (3) the plaintiffs’ ultimate
inability to prevail. See Defs.’ Mem. Supp. Mot. Dismiss 7–9. Accordingly, I will assess
the sufficiency of the plaintiffs’ allegations in relation to only those three elements.
1. Intent
The West Virginia Supreme Court has made clear that a party does not engage
in the tort of intentional spoliation simply because the spoliation was willful or
otherwise done knowingly. Instead, intent focuses on the reason why the evidence
was spoliated in the first place, which must be the “intent of the spoliator to defeat a
party’s ability to prevail in a pending or potential civil action.” Hannah, 584 S.E.2d
at 573. This specific characterization of intent is so critical to sufficiently alleging a
claim that the West Virginia Supreme Court took care to caution future plaintiffs:
We caution that the party injured by spoliation must show more than
the fact that potential evidence was intentionally destroyed. The
gravamen of the tort of intentional spoliation is the intent to defeat a
person’s ability to prevail in a civil action. Therefore, it must be shown
that the evidence was destroyed with the specific intent to defeat a
pending or potential lawsuit.

Id. (emphasis in original). A review of the plaintiffs’ allegations, however, reveals that
they have not sufficiently alleged the requisite specific intent.
The sole allegation relating to Ethicon’s specific intent is located in ¶ 8 of
Exhibit M, which was incorporated into each amended complaint. E.g., Am. Short

applicable to assessing the viability of claims generally.

8

Form Compl. 5 [ECF No. 831]; Pls.’ Mot. for Leave to Amend, Ex. M [ECF No. 46113] (“Exhibit M”). The plaintiffs collectively allege that “Ethicon has intended and/or
intends to defeat Plaintiffs’ ability to prevail in this present action because evidence
destruction and preservation failures continue to occur despite the findings in PTO
100 and Ethicon’s own recognition in January 2007 that it was not compliant with
corporate records management requirements.” Ex. M at ¶ 8. This allegation simply
does not sufficiently allege the requisite specific intent element of the claim.
Even when accepted as true, the facts alleged do not support a finding that the
plaintiffs have stated “a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility
and plausibility of ‘entitlement to relief.’” Id. (citation omitted). The fact that
spoliation continued to occur after Ethicon was sanctioned in Pretrial Order No. 100
does not necessarily mean that Ethicon had the requisite intent. As alleged, Ethicon
could have just as easily spoliated evidence through negligent conduct, and nothing
alleged by the plaintiffs creates a reasonable inference that Ethicon possessed the

9

requisite intent.6 The same is true for the plaintiffs’ factual assertion that Ethicon
recognized that it was not compliant with its corporate records management
requirements. Both facts are consistent with the possibility that Ethicon
intentionally spoliated evidence, but the allegations stop “short of the line between
possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (citation
omitted).
Additionally, nothing contained in the plaintiffs’ Motion for Leave to Amend
sufficiently alleges the requisite intent. Throughout the motion, the plaintiffs state
that large sets of documents have been “lost” or “conveniently destroyed,” and no
factual allegation supports a reasonable inference that Ethicon spoliated with the
intent of preventing the plaintiffs from prevailing. Thus, the plaintiffs have not
articulated facts that have the hallmarks of a plausible claim that Ethicon intended
to spoliate evidence in order to prevent the plaintiffs from prevailing in this action.
Therefore, I FIND that the plaintiffs have failed to state a claim upon which relief
may be granted because they have insufficiently alleged that Ethicon possessed the
requisite intent.
2. Vital to Prevail
Additionally, the plaintiffs have failed to sufficiently allege that the spoliated
evidence was “vital” to their cases. To succeed on an intentional spoliation of evidence

“West Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation is
the result of the negligence of a party to the action.” Syl. pt. 2, Hannah, 584 S.E.2d at 563.
6

10

claim, a plaintiff must sufficiently allege that “the spoliatd evidence was vital to [his
or her] ability to prevail in the pending or potential civil action.” Syl. pt. 11, Hannah,
584 S.E.2d at 564. The plaintiffs allege that “[t]he spoliated evidence is vital to
Plaintiffs’ ability to prevail in this present action, because much of it related to key
former Ethicon officers, including the head of the company, and other key employees,
such as sales representatives.” Ex. M at ¶ 7. Apart from the plaintiffs’ pure legal
recitation of the element, the only alleged factual information supplied states that
“much” of the spoliated evidence is “related” to key Ethicon employees. The plaintiffs
provide no context for how the evidence is “vital” to each of their cases.
Even if evidence regarding key Ethicon employees is relevant, admissible, or
even highly probative, it does not follow that such evidence must also be, ipso facto,
“vital” to the plaintiffs’ ability to prevail on their underlying claims. “[T]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion
couched as a factual allegation.’ Therefore, a plaintiff must ‘articulate facts, when
taken as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief.’”

McDowell v. Town of Sophia, No. 5:12-cv-01340, 2013 WL 525177, at *7 (S.D. W. Va.
Feb. 11, 2013) (Berger, J.) (citations omitted). The plaintiffs’ allegations are merely
legal conclusions, couched in factual allegations that do not establish a reasonable
inference that the spoliated evidence is vital to the plaintiffs’ ability to prevail on
their underlying claims.
11

Further, the plaintiffs do not discuss whether the spoliated evidence is vital to
their underlying claims in their Motion for Leave to Amend. In fact, the closest the
plaintiffs come to discussing how “vital” the evidence is to their cases is to argue that
Ethicon destroyed evidence that may have been useful to the plaintiffs when Ethicon
destroyed certain relevant TVT samples. Mot. Leave to Amend 8 (“Without question,
TVT-O and TVT-S samples related to complaints present ‘unique, relevant evidence
that might be useful to the adversary.’” (quoting Zubulake v. UBS Warburg LLC, 220
F.R.D. 212, 217–18 (S.D.N.Y. 2003)) (emphasis added)). The plaintiffs’ argument that
certain evidence may have been helpful does not allege that the same evidence was
“vital” to their claims. I FIND that the plaintiffs have failed to state a claim upon
which relief may be granted because they have insufficiently alleged that the
spoliated evidence was vital to their ability to prevail on their individual products
liability claims.
3. Inability to Prevail
Finally, Ethicon argues that the plaintiffs have failed to allege that the
spoliated evidence resulted in an “inability to prevail” in the underlying litigation.
Mem. Supp. Mot. Dismiss 7. The plaintiffs allege that they “may be unable to prevail
in the underlying causes of action having been deprived of the destroyed evidence,
because Ethicon has produced numerous important witnesses who worked there for
years and have few, if any, documents in their custodial file.” Ex. M at ¶ 9. The sixth
element of intentional spoliation requires an “inability to prevail in the civil action.”
12

Syl. pt. 11, Hannah, 584 S.E.2d at 564. Thus, the mere possibility that the plaintiffs
will not succeed on their underlying claims absent the spoliated evidence cannot
establish this necessary element; actual inability is required. The fact that the
plaintiffs “may be unable to prevail” does not sufficiently allege an actual inability to
prevail.
The plaintiffs’ Motion for Leave to Amend contains several examples of
destroyed files relating to specific individuals, but only one example comes close to
alleging that certain plaintiffs have an inability to prevail on an underlying claim.
The plaintiffs state that the custodial file, hard drive, and associated call notes for
Ron Rink, a former Ethicon sales representative, were not preserved. According to
the plaintiffs, Mr. Rink “regularly called on” Dr. Sze7 between November 2005 and
November 2011, and the loss of Mr. Rink’s files will prevent nineteen plaintiffs from
proving “what information Ethicon’s representatives provided or did not provide to
Dr. Sze regarding the TVT device, and are now prejudiced as a result.” Mot. for Leave
to Amend 4. Notably, the plaintiffs do not identify which underlying claim is allegedly
obstructed by the loss of Mr. Rink’s custodial files, etc. Even assuming that these
factual allegations are bound up in the plaintiffs’ failure to warn claims, the plaintiffs’
allegations on this point are purely conclusory and do not provide adequate factual
support for the allegation that failure on the claim is inevitable. I FIND that the
plaintiffs have failed to state a claim upon which relief may be granted because they

7

Dr. Sze implanted the TVT device in nineteen of the plaintiffs. Mot. for Leave to Amend 4.

13

have insufficiently alleged that they are unable to prevail on an underlying claim
because of any spoliation.
IV.

Conclusion
The plaintiffs have failed to state a claim of intentional spoliation of evidence

under West Virginia law. Accordingly, Ethicon’s Motion to Dismiss Cause of Action
for Intentional Spoliation of Evidence [ECF No. 892] is GRANTED, and the plaintiffs’
spoliation claims are DISMISSED without prejudice.
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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November 18, 2016