December 29, 2016 Practice Points

No Spoliation Sanctions Other Than Monetary Sanctions for Unintentional Loss of Relevant Evidence

Overreaching in the face of thin proof does not yield good results.

By Andrew J. Felser

Ethicon, Inc., maker of pelvic-mesh products, was sued in multiple districts under the Louisiana Product Liability Act. Within the multidistrict litigation (MDL) managed in the Southern District of West Virginia—In re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation—various plaintiffs discovered that Ethicon had not preserved all of its sales representatives’ files. A group motion for spoliation sanctions was then filed on behalf of all the MDL plaintiffs. The motion requested such sanctions as entry of default judgment, striking Ethicon’s defenses, or an adverse-inference jury instruction. A magistrate judge found that Ethicon had a duty to preserve the information contained in the files, that Ethicon breached that duty, and that the files contained some relevant evidence. But the plaintiffs failed to satisfy the court that the files were destroyed intentionally. The court imposed monetary sanctions and rejected any additional sanctions. The court ruled that individual plaintiffs, on a case-by-case basis, might be able to show that sanctions in their cases should include the admission of spoliation evidence at trial and an adverse-inference instruction.

Two years later, plaintiff Taylor filed a motion for sanctions against Ethicon arising from the same conduct as the previous group motion. In re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation (Taylor v. Ethicon, et al., 2:12-cv-000376, dec. Oct. 6, 2016). Taylor asked the court—this time an Article III judge—to strike Ethicon’s “learned intermediary” defense, its defenses under the Louisiana Product Liability Act, and its statute-of-limitations defense; and requested an adverse-inference jury instruction. The court adopted the findings and conclusions of the previous magistrate judge and denied the motion altogether. Describing in detail how the unavailable evidence could be pieced together with other evidence, the court found no proof that Ethicon’s conduct caused any greater prejudice to the plaintiff than the prejudice alleviated by the monetary sanctions already imposed for the benefit of all plaintiffs. The court found no indication that Ethicon destroyed any evidence after entry of the previous order. The duplicative nature of the motion hurt the plaintiff’s cause: “The plaintiff is clearly attempting to gain a second bite at the apple with her Motion.” Worse, the court found that the plaintiff “flagrantly misrepresent[ed]” the conclusions of the magistrate judge.

Spoliation claims require as much painstaking effort to build a proper foundation as any other claim. In this case, the court was offended by the way the motion was presented. On the merits, the court found that the prejudice caused by the loss of the evidence could be surmounted through other discovery methods. Given the way Rule 37 is applied where there is no proof of willful destruction, movants should be prepared to show that the prejudice can be cured only by the imposition of sanctions, and that the sanctions requested are proportionate to the harm. Overreaching in the face of thin proof does not yield good results.

Andrew J. Felser is with Felser, P.C., in Denver, Colorado.

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