In KIEFFABER v. ETHICON, Civil Action No. 20-1177-KHV (D. Kansas March 25, 2021), Defendants filed a motion in limine to exclude evidence of Plaintiffs’ allegations of Defendants’ spoliation.
Despite an admission by its corporate designee that Ethicon destroyed tens of thousands of relevant documents in violation of its own document preservation litigation holds, Defendants sought to exclude Plaintiffs from presenting testimony at trial regarding Defendants’ failure to retain the documents. Defendants’ argument was two-fold. First, Defendants argued that such evidence had no relevance to Plaintiffs’ claims and would prejudice and confuse jurors. Second, that under Rule 37, such evidence is admissible only where the destruction of materials interfered with the other party’s ability to present their case.
On the first point, relying on the MDL’s prior holding that the MDL plaintiffs had carried their initial burden of demonstrating that the lost materials likely contained some relevant evidence and that Defendant there had not shown otherwise, the District Court similarly found that Ethicon in this case had not shown any evidence that the evidence it destroyed or failed to preserve was irrelevant to Plaintiffs’ claims. “The documents were in the custody of key figures in the development, design and manufacture of Ethicon mesh products, and on this record—given the findings of the MDL Court—this Court must infer that as a general proposition, they contained evidence which is relevant to this case,” stated the Court.
As to whether Rule 37 could exclude such evidence, the Court noted the MDL court’s acknowledgment that the issue of prejudice should be evaluated in each individual case, and in any case Plaintiffs had not yet filed a motion for sanctions under Rule 37. As stated by the Court, “the law with regard to spoliation (which places great weight on the resulting prejudice to the innocent party and the spoliator’s degree of culpability) is not synonymous with the law under Rule 37 (under which, to avoid sanctions, the spoliator must show that the failure to disclose was “substantially justified” or “harmless” to the innocent party).”
Accordingly, Defendants’ motion in limine was overruled. However, because such evidence is potentially excludable under Rule 403, the Court ordered that Plaintiffs may not present testimony or argument about failure to retain documents without first submitting a written proffer which generally identifies the missing documents which relate to this Plaintiffs’ case and pinpoints how Ethicon’s failure to preserve those documents has impacted their ability to try their case on the merits.