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July 03, 2019 Practice Points

Defendants in Complex Case Accuse Plaintiffs' Counsel of "Serious Abuse"

In a case involving experiments by the U.S. government on citizens of another nation, defendants accused opposing counsel of failing to reasonably investigate their claims and doctoring and withholding evidence.

By Fritz Metzinger

On April 9, 2019, the defendants in a $1 billion suit in the U.S. District Court for the District of Maryland, arising out of sickening experiments conducted more than 70 years ago by the United States Government on Guatemalan citizens, moved for extensive discovery and grave sanctions against the plaintiffs' attorneys. The defendants accused opposing counsel of failing to reasonably investigate their claims and doctoring and withholding evidence. Judge Theodore D. Chuang has yet to rule on the defendants' motion. See Estate of Arturo Giron Alvarez v. Johns Hopkins Univ., No. 1:15-cv-0950 (D. Md.).

According to a 2011 report from the Presidential Commission for the Study of Bioethical Issues, the United States Government purposefully infected more than 5,000 non-consenting Guatemalans with bacteria that causes sexually transmitted infections (STIs), including syphilis, from 1946 through 1948. See generally Katie Spector-Bagdady & Paul A. Lombardo, "U.S. Public Health Service STD Experiments in Guatemala (1946-1948) and Their Aftermath", 41 Ethics & Human Research 29 (Mar.-Apr. 2019). The plaintiffs, hundreds of Guatemalans who allegedly contracted syphilis from the experiments as well as the spouses, children, or grandchildren of those who did, assert that the defendants—including Johns Hopkins University, Bristol-Myers Squibb, and the Rockefeller Foundation—knowingly participated in the design, development, and execution of the experiments. Third Amended Complaint, Rec. Doc. 127. 

In their motion, the defendants cite an array of alleged misdeeds and deceptions by plaintiffs' counsel that qualify as "serious abuse." Opening Brief In Support of Request for Discovery and Motion for Sanctions, Rec. Doc. 262-1 (Brief), at 4-5. Specifically, the defendants contend that, inter alia:

  • the plaintiffs' primary medical expert, who claimed to have established a link between the experiments and the plaintiffs' conditions perjured himself in his deposition and admitted to plagiarizing large sections of his reports (Brief at 1-2, 23-27);
  • plaintiffs' counsel have dropped nearly 700 of the original 842 plaintiffs from the suit, evidencing their lack of reasonable investigation and desire to forestall further discovery into how plaintiffs were selected (Brief at 2, 9-12, 27-28);
  • plaintiffs have provided false certifications as well as sworn interrogatory responses without understanding their contents (Brief at 12-17);
  • counsel did not inform the plaintiffs that the purpose of the blood testing to which they submitted was to test for syphilis (Brief at 17-18);
  • plaintiffs' counsel has withheld unfavorable evidence, including of negative syphilis test results (Brief at 20-21).

To remedy these willful abuses, the defendants argue, the court should allow "targeted discovery" of opposing counsel's investigation and prosecution of plaintiffs' claim—including into privileged matters—and order full reimbursement for the costs and expenses incurred by defendants in discovery. Brief at 29-34. The defendants did not file a Rule 11 motion for dismissal and sanctions but "expect" to eventually. Brief at 4.

In response, the plaintiffs deny misconduct by their "upstanding" attorneys, dismissing defendants' request for intrusive discovery and grave sanctions as overdramatic "satellite litigation." Memorandum in Opposition, Rec. Doc. 300 (Opposition), at 1-6. They further emphasize that the imposition of sanctions under either the court's inherent power or 28 U.S.C. § 1927, the defendants' cited bases for relief, requires evidence of "subjective bad faith" that the defendants failed to identify. Opposition at 2-4. Arguing that they have "pared down" their claims in good faith, the plaintiffs highlight prior rulings of the court that "caution[ed] against excessive or unnecessary discovery" and expressed a willingness to let the plaintiffs "test" their claims in discovery. Opposition at 21-23. They further defend their reliance on third parties who engaged in wrongdoing (such as the medical expert) as reasonable. Opposition at 26-45. Finally, the plaintiffs bemoan the defendants' failure to acknowledge the "unique challenges" of the convoluted international litigation, in which the plaintiffs are nearly all native Guatemalans who do not speak fluent English and have little understanding of the American litigation process. Opposition at 8-11, 23-26.

In describing the litigation as "unique," the plaintiffs have a point. Billion-dollar mass torts actions involving experiments by the U.S. government on citizens of another sovereign nation hardly occur with the frequency of slip-and-falls. Nevertheless, the pending motion for sanctions in Alvarez underlines the importance of verifying the bases for claims and vetting potential clients and witnesses as thoroughly as possible, particularly in complex cases. Should the court grant the defendants' motion to any extent, it could serve as a warning to attorneys across the country that inadequate claim investigation could imperil not only the outcome of the case but the offending lawyers' reputations. On the other hand, denial of the motion could leave defendants' counsel red-faced at having levied such incendiary accusations against their colleagues without obtaining any relief.

Fritz Metzinger is an associate at Stone Pigman Walther Wittmann LLC in New Orleans, Louisiana.

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