Mullins et al v. Johnson & Johnson et al

Filing 821

ORDER granting 461 MOTION for Leave to Amend Complaints; any plaintiff in this consolidated action intending to pursue a claim for spoliation is Ordered to file the respective amended complaint on or before 6/29/2016; the parties are reminded that all filings shall be captioned and docketed in the lead case, Mullins, et al., No. 2:12-cv-02952. Signed by Judge Joseph R. Goodwin on 6/27/2016. (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
CONSOLIDATED LEAD CASE:

Mullins, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-02952
ORDER

Pending before the court is the plaintiffs’ Motion for Leave to Amend
Complaints [ECF No. 461]. The defendants did not file a timely response.
The plaintiffs in these consolidated cases seek to amend their respective
complaints to include the tort of spoliation, which is recognized under the laws of
West Virginia as a stand-alone tort. Syl. 9, Hannah v. Heeter, 584 S.E.2d 560, 564
(W. Va. 2003) (“West Virginia recognizes intentional spoliation of evidence as a
stand-alone tort when done by either a party to a civil action or a third party.”). The
plaintiffs point out that Magistrate Judge Eifert previously (1) determined that
spoliation had occurred, (2) granted monetary sanctions against Ethicon, and (3)
ordered that the plaintiffs could address whether spoliation evidence could be
introduced at trial on a case-by-case basis for the purpose of tendering an adverse
inference instruction. Mot. 2 (discussing PTO No. 100). The plaintiffs allege that
since the issuance of PTO No. 100, they have identified more instances of purported
spoliation. See Mot. 2–5. Based on these new discoveries, the plaintiffs wish to

allege a claim for spoliation.
Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, “a party
may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so requires.” The close
of discovery in these cases occurs on July 25, 2016, and dispositive motions, if any,
must be served by August 1, 2016. These spoliation claims are necessarily boundup in the jury’s consideration of the plaintiffs’ negligent design and strict liability
design defect claims. The elements of a West Virginia spoliation claim include
consideration of the plaintiffs’ inability to prove an underlying claim because of any
spoliation. See Hannah, 584 S.E.2d at 569–70. Thus, any spoliation claim is
contingent on the plaintiffs’ success regarding their underlying claims. Accordingly,
the addition of spoliation claims does not require the modification of the court’s
current scheduling order. See Fed. R. Civ. P. 16(b) (“A schedule may be modified
only for good cause and with the judge’s consent.”). Further, the consolidation
factors considered by the court in PTO No. 184 remain satisfied.
Accordingly, the court GRANTS the plaintiffs’ Motion for Leave to Amend
Complaints [ECF No. 461]. Any plaintiff in this consolidated action intending to
pursue a claim for spoliation is ORDERED to file the respective amended complaint
on or before June 29, 2016. The parties are reminded that all filings shall be
captioned and docketed in the lead case, Mullins, et al., No. 2:12-cv-02952.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
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ENTER:

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June 27, 2016