In re Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, 2014 U.S. Dist. LEXIS 14076

Background

MDL matter regarding Ethicon TVT/Prolift pelvic mesh products; Plaintiffs seek spoliation sanctions, including default judgments and adverse instructions.
Court finds Ethicon destroyed or lost documents that should have been preserved after duty to preserve was triggered.
Court concludes Ethicon’s loss was negligent, not willful or deliberate; prejudice insufficient for extreme sanctions.
Court awards monetary sanctions for time spent compiling missing custodial files and preparing depositions; case-by-case admissibility of spoliation evidence recommended.
Earliest preservation duty dates found to be April 30, 2007 (TVT) and April 21, 2008 (Prolift); Consolidated Hold Notice refreshed in 2011.
Court notes multiple missing custodial files across 22 Ethicon employees, plus issues with Medscand materials and a videotape, but finds some items outside preservation window or not proven to be destroyed for trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
When did the duty to preserve arise?	Plaintiffs contend duty arose broadly in MDL, starting with 2003 notices and continuing to large-scale action.	Ethicon argues duty tied to specific pre-MDL cases; no general duty until consolidation in 2010.	Duty arose April 30, 2007 (TVT) and April 21, 2008 (Prolift); later holds refreshed in 2011.
Were any documents destroyed in breach of the preservation duty?	Numerous custodial files show few documents and some evidence was lost/destroyed after holds.	Losses resulted from routine personnel changes and were not intentional; backups and central repositories exist.	Yes, certain custodial files were breached; destruction occurred but was negligent, not willful.
What is the appropriate sanction for spoliation?	Extreme sanctions (default judgment, defense-striking, adverse instructions) are required due to widespread spoliation.	Sanctions should be proportionate; no showing of willful misconduct or substantial prejudice to justify extreme measures.	Partially granted; monetary sanctions awarded; default, defense-striking, and universal adverse instructions denied; case-by-case adverse-inference allowed where appropriate.
Is an adverse-inference instruction appropriate in all cases?	Adverse inferences should be given in all cases due to missing evidence.	Adverse-inference instructions require stronger showing of willfulness and specific prejudicial impact.	Not in every case; deny for universal application; may be allowed on a case-by-case basis when warranted.
Should Plaintiffs receive monetary sanctions for the spoliation?	Plaintiffs have substantially succeeded and deserve compensation for increased time and effort to reconstruct missing evidence.	Extensive production already provided; damages should be limited and proportionate.	Yes; monetary sanctions granted; amount to be determined after affidavits and supporting documentation; hearing to be considered.

Key Cases Cited

Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001) (duty to preserve before litigation and standards for sanctions)
Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 522 (D.Md. 2010) (tests for finding spoliation and appropriate sanctions)
Rimkus Consulting Group, Inc. v. Isola, No. 3:06‑cv‑3116, 688 F. Supp. 2d 598 (S.D. Tex. 2009) (sanction framework balancing culpability and prejudice)
Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (limits on preservation scope and need for litigation holds)
Delta Air Lines, Inc. v. Isgur, 770 F. Supp. 2d 1299 (N.D. Ga. 2011) (duty to preserve not automatically triggered by government investigation)
Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008) (duty to preserve arising when litigation is pending or probable)
Stanojev v. Ebasco Services, Inc., 643 F.2d 914 (2d Cir. 1981) (prejudice and sanctions standards in spoliation)
West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir. 1999) (prudence in imposing sanctions for spoliation)