Discovery Sanctions…not just for Defendants

Discovery Sanctions…not just for Defendants

While it is common to hear about large corporate defendants being sanctioned in huge products liability cases for not properly disclosing information, an individual plaintiff being sanctioned for the same offense is far less common. However, a recent Order issued In re: Taxotere Products Liability Litigation sanctioned a bellwether plaintiff for withholding information about her medical history and not producing documents. This particular situation was quite egregious and could not be overlooked.

In this matter, Sanofi-Aventis is defending itself against allegation that it failed to warn patients that Taxotere could cause permanent hair loss. Plaintiffs were required to complete a Plaintiff Fact Sheet (PFS) which required them to identify any physicians who had provided treatment to them over an eight-year period and to disclose whether they had “used any over-the-counter medication, supplements or cosmetic aides” for hair loss.

Dr. Kelly Gahan, the bellwether plaintiff, claims the chemotherapy drug caused permanent hair loss, but intentionally left Dr. David Weinstein off of her PFS. Dr. Gahan was treated by Dr. Weinstein for over a year for experimental hair regrowth and she even emailed him photos of her “progress.”

Of course, plaintiffs have to produce documents too, so the defendants soon learned of Dr. Weinstein when Dr. Gahan produced thousands of pages of emails during discovery. Included was an email where Dr. Weinstein asked if he could use the “progress” photos to promote his treatment method. Dr. Gahan responded, “I think that should be okay. How widely will they be distributed? Would rather not have the lawyers for the other side put two and two together just yet.”

After this was unearthed, Sanofi notified Plaintiff’s counsel that it intended to seek Dr. Weinstein’s treatment records. When Dr. Weinstein failed to produce the records, Sanofi subpoenaed him. Dr. Gahan, having heard of the subpoena, notified Dr. Weinstein in a text message, “Hi, just a heads up the opposing side is going to subpoena you in the next day or two. The judge ordered all my emails released and they must have gleaned your name off them.” Additionally, the plaintiff directed her former employer, Veterans Affairs Medical Center, to refuse to produce any employment or medical records.

At her deposition, when asked why she did not included Dr. Weinstein in her PFS she said, “I might have just forgotten. . . . I didn’t think he was my doctor per se. He was just in my mind a researcher that I was talking to.”

In the Order Judge Milazzo stated:

The Court is troubled by Gahan’s conduct. She is a sophisticated plaintiff, and she is a representative plaintiff in this litigation. The PFS required her to disclose both the physicians who provided treatment to her and whether she used any over-the-counter medications or supplements; Dr. Gahan knew or should have known that the PFS required her to disclose Dr. Weinstein and the treatment he provided to her. By repeatedly omitting this information from her PFS, Dr. Gahan has failed to comply with her discovery obligations. Even if the Court accepts Dr. Gahan’s explanation that she merely forgot to disclose Dr. Weinstein, Dr. Gahan has provided no explanation for why she instructed the VA Center not to release her records. Further, her correspondence with Dr. Weinstein about Sanofi’s request for his records demonstrates that she has encouraged at least one other potential witness to be less than forthcoming in this litigation.

For all of the efforts that Dr. Gahan went through to conceal certain information, the sanction by the Court was that the plaintiff release any additional relevant information that she has in her custody and failed to produce. The Judge added, “The Court will allow this sanction to serve as a warning to Dr. Gahan and to any other plaintiff who might be considering adopting evasive tactics like those discussed in this opinion. If the Court learns that any other plaintiff has intentionally withheld relevant information that should have been produced in a PFS or in response to a request by Defendants, the Court will impose severe sanctions, which may include dismissal with prejudice.”

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