Mullins et. al. v. Ethicon, Inc. et. al., Case No. 12-02952 (S.D. W.V., Nov. 18, 2016) is a massive multi-district litigation (MDL) related to injuries to patients arising from pelvic mesh implants used to treat urinary incontinence. After the cases were consolidated, Plaintiffs filed a motion to amend the consolidated complaint to include allegations regarding spoliation of evidence. Defendants did not respond to the motion, and the court granted leave to amed. Plaintiff amended the concolidated complaint and added a cause of action for intentional spoliation of evidence, which is a stand-alone tort in West Virginia. Defendants objected, arguing that New Jersey law should apply to the spoliation claims because most of the alleged spoliation occurred in New Jersey. Under New Jersey law, there is no stand-alone tort for spoliation of evidence. Defendants further argued that Plaintiffs had failed to state a claim.
Regarding the choice of law issue, the court found that West Virginia law applied to the issue. With respect to the failure to state a claim, Plaintiffs alleged many examples of destroyed employee files. The court looked at the necessary elements of spoliation – intent, whether the spoliated evidence was “vital” to Plaintiffs’ ability to prevail, and Plaintiffs’ ultimate inability to prevail on the cause of action without the spoliated evidence. The court found that Plaintiffs failed to show that Defendants had intened the spoliation and that Plaintiffs did not provide reasoning whether the evidence was vital to their underlying claims. As to Plaintiffs’ inability to prevail without the spoliated evidence, the court noted that the standard is that a plaintiff must show more than a possibility that they cannot prevail without the spoliated evidence. The court found that in Plaintiffs’ amended Complaint, the only example of spoliation that came close to showing an “inability” for some of the plaintiffs to prove their claims was the failure to preserve the custodial file, computer hard drive, and call notes for a sales rep named Ron Rink. The failure to preserve Rink’s files would prevent only 19 plaintiffs from proving certain factual allegations that may or may not be dispositive. Based upon these findings, the court dismissed Plaintiffs’ spoliation claims.