In Illinois, the judge overseeing the federal Pradaxa multidistrict litigation (MDL) has imposed nearly $1 million in sanctions on Pradaxa drug maker Boehringer Ingelheim, saying the company’s failure to produce or preserve thousands of documents sought by plaintiffs was “egregious” and in bad faith. Imposing sanctions is basically the court’s way of fining an attorney for disobeying the rules of the court.
According to the 51-page order issued December 9, Chief Judge David R. Herndon of the U.S. District Court for the Southern District of Illinois said Boehringer Ingelheim International GMBH and Boehringer Ingelheim Pharmaceuticals Inc., made misrepresentations to the court, “causing it to believe that each defendant had a litigation hold, company-wide, on all relevant personnel and all relevant documentation and data (in their broadest definitions) at all relevant times.” Judge Herndon is overseeing more than 1,700 consolidated lawsuits over claims that Pradaxa caused excessive and sometimes fatal bleeding.
The Judge noted that as of June 2012, defendants knew that nationwide Pradaxa product liability litigation, which involved hundreds of cases, was imminent and that they cannot justify failing to adopt a company-wide litigation hold at that time. There have been discovery problems almost from the beginning of this litigation associated with defendant’s misconduct, the judge explained, and the court is continually being asked to address issues relating to lost, late, accidentally destroyed, missing, and/or “just recently discovered” evidence.
Judge Herndon commented, “the defendants’ justification for these discovery violations include placing the blame on others such as third-party vendors (production is delayed due to ‘vendor issues’); their own IT departments (we told IT to give the vendors full access to the database but for some reason IT provided the vendors with limited access); their own employees (the defendants’ deponent did not understand that work-related day planners should have been produced or the employees did not understand that work-related text messages should have been retained and produced); the defendants’ and/or counsel’s lack of experience in addressing litigation of this size; the defendants did not know, until recently, that this would turn into a large nationwide MDL; unusual technical issues (despite our best efforts, that employee’s hard drive was accidentally erased during a routine Windows 7 update….”
The Judge goes on about how the defendant has an army of excuses as to why they did not produce the documents which were required – by law – to be produced. Although Judge Herndon gave the defendants the benefit of doubt, he cautioned that “when such conduct continues, there is a cumulative effect that the court not only can, but should take into account.”
After reviewing the most recent discovery attempts, he determined that the defendants did act in bad faith, and should be sanctioned. The lack-of-discovery allegations the judge used in his determination were that the defendants did not preserve the custodial file of Professor Thorstein Lehr, a former Boehringer scientist working on Pradaxa. Additionally, they failed to identify Professor Lehr as a records custodian. In other words, when the Plaintiff asked the Defendant to reveal the name(s) of any employee or person who would be in charge of safe-keeping these documents, the Defendants are required to reveal that information, if it is known to them. Once the question is asked, they cannot pretend they do not know, or they will be sanctioned for lying to the court and deceiving the Plaintiff.
The entire purpose of sanctions is to dissuade either party from engaging in this type of behavior, for it delays discovery, which, by nature, is used to expedite the litigation process.
Judge Herndon said, “the defendants argue that their failure to produce the many thousands of documents they are now producing, and their inability to produce other documents at all, are the result of a good faith measured approach to the production of millions of documents over a fairly short period of time. They contend their failure to designate certain employees as subject to a hold is part of a reasonable hold strategy based on a measured and proportioned approach to cost-benefit analysis dependent scope of litigation. They base their failure to include one scientist in the litigation hold on a failure of their opponents to designate him and their own determination that he singularly was not important enough in light of including his coworkers whose custodial materials were being provided.”
The Judge added that the defendants seem to be providing the discovery on their own schedule, when convenient for them, and not when it is due by the court’s orders. By doing so, the defendants have violated the court’s case management orders, and anytime a party does not follow orders of the court, they are sanctionable.
The Judge went through several other violations by the defendants of case management orders, backing up his finding that they have acted in bad faith.
The plaintiffs requested that the depositions of the employees, scheduled to take place in Europe, be moved to a place convenient to the United States attorneys. As a result of defendants’ bad faith in conducting discovery, Judge Herndon ruled that an appropriate sanction would be to require defendants to conduct all the depositions of their employees in the United States. The reason this is a big deal is because the defendant must bear the expense of travel for their clients, as well as food and hotel stay.
The Judge also determined that both defendants should be fined $500 per case, or $931,500 total, jointly and severally. The judge stated, “the fine imposed today will not impact the defendants’ profit margins, but hopefully together with the potential future actions the Court may be forced to take, once it learns whether the plaintiffs have been so prejudiced by the misconduct as to be unable to fully prosecute their cases, the defendants will understand once and for all time compliance with the Court’s orders is not an optional part of litigation strategy.”
Judge Herndon scheduled the first trial for August 11, 2014, with trials following on November 3, 2014, January 5, 2015, and February 16, 2015.
The U.S. Food and Drug Administration (FDA) approved Pradaxa in 2010 to prevent strokes caused by blood clots. FDA officials reported 542 deaths, as well as 3,781 incidents of adverse side-effects back in 2011.
What do you think about the actions of the Defendants? Do you think this sanction of $1 million was excessive? Was it too little? Feel free to comment on this blog post.
For more information, contact a Gacovino Lake attorney at 1-800-246-HURT (4878).
