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Ward v. Schaefer

United States District Court, D. Massachusetts

September 18, 2019

EDMUND EDWARD WARD, Plaintiff,
v.
ERNST J. SCHAEFER, M.D., Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S RENEWED MOTION FOR SANCTIONS (#151).

          M. Page Kelley, United States Magistrate Judge.

         I. Introduction.

         Plaintiff moves under Fed.R.Civ.P. 37(e) for the court to enter a default judgment, alleging that defendant deliberately destroyed emails relevant to the case. (#151 at 1.) In the alternative, plaintiff requests an adverse inference instruction to the jury at trial. Id. For the reasons set out below, the court finds that the extreme sanction of the entry of a default judgment is not warranted, and recommends the motion be denied. The motion for an adverse inference instruction should be decided by the trial judge, so the court recommends that motion be denied without prejudice.

         The underlying facts of this case are set out in detail in Judge Saylor's Order on defendants' motion to dismiss (#49) and will be repeated here only to the extent necessary.[1] Plaintiff was born with a rare genetic deficiency of a bloodstream enzyme, called lecithin-cholesterol acyltransferase (LCAT). (#1-1 at 2.) As a result of the deficiency, he produces no cholesterol. Id. The condition causes life-threatening complications, including kidney disease, and at the time of the filing of the complaint in July 2016, Mr. Ward was in stage 5 kidney failure. Id.

         Dr. Schaefer is a physician at the Tufts University School of Medicine and is Chief Medical Officer at Boston Heart Diagnostics. Id. at 1. Dr. Schaefer began treating Mr. Ward for his LCAT deficiency in 2010. (#120-1 at 5.)

         In this tort action, [2] Mr. Ward alleges that Dr. Schaefer fraudulently induced him to participate in an experimental drug trial, by misleading him into believing that the drug would reverse his advanced kidney disease, when in fact the true purpose of the trial was to test the drug's efficacy in treating cardiovascular disease, and thereby bolster the value of the company that licensed the patent of the drug.

         II. Procedural History.

         The somewhat tortuous history of this matter[3] began with a motion to compel discovery of Dr. Schaefer's email correspondence, filed by Mr. Ward in June 2018. (#100.) Mr. Ward had asked for “all documents concerning communications by [Dr. Schaefer] or any person concerning, supporting or refuting any of the allegations in the Complaint, ” and had named forty-two individuals or entities, including the dismissed defendants, numerous physicians, the United States Food and Drug Administration, and others, whose communications with Dr. Schaefer he sought. (#102-1 at 5-6.)

         Dr. Schaefer opposed the motion, explaining that he already had produced responsive emails, and that he had no other emails to produce, because it was his practice to delete emails that did not pertain to his patients. (#102 at 2, 4.) Plaintiff responded that Dr. Schaefer was in violation of Fed.R.Civ.P. 37(e), which deals with the failure to preserve electronically stored information (ESI), and demanded that Dr. Schaefer explain when he deleted emails, what reasonable steps he took to preserve them, and whether they could be restored. (#105 at 1-2.)

         Dr. Schafer responded in an affidavit that he uses two email accounts, one at Boston Heart Diagnostics and one at Tufts University. (#109-1 at 2.) He averred that it is his “custom and practice to review [his] emails” in the two accounts and to delete them either weekly (Boston Heart Diagnostics) or monthly (Tufts). Id. He had “no knowledge or understanding of whether or how deleted emails from either of these two email addresses could be recovered at this time.” Id. Finally, he had no idea “prior to 2016, when [he] received the Summons and Complaint in this matter, ” that he “would be involved in litigation brought by Edmund Ward.” Id.

         At a hearing, at which defendant maintained that the emails plaintiff sought were no longer in his possession and he did not have to produce them, the court ordered plaintiff to issue subpoenas to Boston Heart Diagnostics and Tufts University to see if they still had Dr. Schaefer's deleted emails on their servers. Defendant did not object. (#111.) Plaintiff then issued subpoenas seeking emails between Dr. Schaefer and twenty-three named persons from January 1, 2010 to December 16, 2016.[4] (#114-5.)

         In response to the subpoenas, Boston Heart Diagnostics produced 1, 124 emails dated from January 4, 2016 to October 17, 2018, and Tufts University produced seventy-one pages of correspondence dated from May 17, 2016 to October 13, 2016. (#120 at 4.) It is not clear to the court whether the emails consisted only of deleted emails. At the oral argument, in response to the court's questions about precisely what emails had been recovered, plaintiff's counsel stated that “some of the e[]mails that were produced were not recovered from a deleted e[]mail account, ” but never explained this further. (#171 at 5-6.) The court also does not know why the earliest emails were from 2016, rather than 2010, as the subpoena requested. At oral argument, the court asked plaintiff's counsel whether, since the subpoenas were issued in September 2018, one could infer that the institutions kept emails on the servers for only two years. Id. at 6-7. This question has never been answered. For purposes of this order, the court will assume that emails were only preserved for a period going back two years from the date of a request for them.

         It is also relevant to the court's analysis that in April 2019 plaintiff tried to obtain emails between Dr. Schaefer and three of the dismissed defendants, Dr. Remaley, Dr. Shamburek, and Mr. Auerbach, by subpoenaing the National Institutes of Health (NIH). (#151 at 4.) According to plaintiff, this subpoena yielded “a limited amount of correspondence by Dr. Schaefer” and the other three individuals. Id. At oral argument, plaintiff's counsel stated that he had subpoenaed “all emails and documents that concern the initiation, the crafting, the implementation and the subsequent treatment under the protocol of my client, and so that's in essence, what we asked, I think, the NIH to produce.” (#171 at 12.) The court does not know the date range requested. The earliest date of the NIH correspondence was April 29, 2013. Id.[5]

         Shortly after plaintiff subpoenaed the emails from Tufts University and Boston Heart Diagnostics, defendant filed an emergency motion for a protective order, because plaintiff had notified him that Boston Heart Diagnostics had sent plaintiff more emails than the subpoena had requested, including emails that were protected by the attorney-client privilege. (#114 at 1, 5.) After a hearing, the court ordered defendant to go through the emails, provide any relevant emails to plaintiff, and generate a privilege log. (#122.) The court ordered plaintiff not to review further the emails received from Boston Heart Diagnostics. Id.

         Plaintiff moved for sanctions against defendant under Fed.R.Civ.P. 37(e) for deleting emails. (#117 at 1.) The court found that plaintiff's argument that Dr. Shaefer reasonably foresaw litigation and deliberately destroyed his emails was premature and held that plaintiff could raise the issue again if further facts were developed. (#122.) In the following months, in response to filings by the parties, the court reviewed, in camera, emails that defendant claimed were privileged, made findings concerning the relevance of certain other emails (#126), reviewed, in camera, additional emails that defendant claimed were privileged (#149), and ordered that certain emails be turned over to plaintiff. (#154.)

         Plaintiff renewed his motion for sanctions. (#151 at 1.) The court held a final hearing on this matter on July 16, 2019 (#166), after which the parties filed memoranda. (##167, 168.)

         III. Facts.

         A. Mr. Ward participates in the drug trial.

         One of the dismissed defendants in this case, Bruce Auerbach, was an officer and principal of another dismissed defendant, AlphaCore Pharma, LLC. (#1-1 at 1.) In 2012, AlphaCore was the sole patent licensee of the experimental drug that Mr. Ward was given, a recombinant human LCAT called ACP-501. Id. at 3.[6] Former defendants Robert Shamburek and Alan Remaley are physicians employed by the United States Department of Health and Human Services, at the NIH in Bethesda, Maryland. Id. at 1-2. These two doctors conducted a limited study of ACP-501 in 2012, in which they determined that a single injection of ACP-501 in 16-18 human subjects was safe. Id. at 4.

         Dr. Schaefer first saw plaintiff for his LCAT deficiency in July 2010, and he met with him monthly through 2012 “to explore treatment options.” (#120-1 at 5; #120-5 at 8.) According to the complaint, sometime in 2012, Dr. Schaefer introduced Mr. Ward to Dr. Remaley, Dr. Shamburek, and Mr. Auerbach of AlphaCore, as an “ideal research subject for ACP-501.” (#1-1 at 4.)

         AlphaCore was granted an orphan drug designation for ACP-501 and a compassionate use protocol was approved so that Mr. Ward could take the drug. Id. at 5. The complaint alleges that Dr. Schaefer, Dr. Remaley, Dr. Shamburek and Mr. Auerbach together fraudulently induced him to participate in the trial, by assuring him that the drug would reverse his advanced kidney disease, when in fact, they knew that its real value was as a potential breakthrough for the treatment of cardiovascular disease. Id. Mr. Ward alleges that they hoped that by experimenting on him to his detriment, they could accumulate favorable data that would help them sell AlphaCore to a “pharmaceutical conglomerate.” Id. at 5-6.[7]

         Although the record is not completely clear concerning the role of Dr. Schaefer in Mr. Ward's treatment at the NIH, it appears that the Clinical Protocol for Mr. Ward's treatment designated Dr. Shamburek as the principal investigator, Dr. Remaley as the safety-review investigator, and Dr. Schaefer as the medical monitor. (#1-1 at 10.)[8]

         Mr. Ward began the trial at the NIH in Maryland in January 2013 and stopped participating in September 2013. Id. at 6, 14. The trial was “painful, grueling, and confining.” Id. at 7. Mr. Ward had to stay in a closed room for twenty-four hours at a time; he had his blood drawn as many as thirty-two times in one day; and he suffered serious, life-threatening side effects as a result of the treatment. Id.

         The complaint alleges that the only effect the trial had on Mr. Ward was to worsen his kidney disease, because while he was participating in the trial, Mr. Ward was not able to be on much-needed dialysis. Id. at 11. According to the complaint, Dr. Shamburek and Dr. Remaley both falsely told him that the trial was improving his kidney function, and they counseled him to remain in the trial and not have dialysis. Id. After April 2013, according to the complaint, Dr. Shamburek stopped sharing blood test data with Dr. Schaefer and “otherwise stopped communicating with [Dr. Schaefer].” Id. at 14.

         In September 2013, Mr. Ward's nephrologist, Dr. Valerie Price, and Dr. Schaefer told Mr. Ward that he would have to stop the treatment and have dialysis. Id. Dr. Schaefer told Mr. Ward that the treatment “wasn't working and so [Mr. Ward] should drop out.” (#120-5 at 19.) After he dropped out, Dr. Shamburek left an angry voicemail on Mr. Ward's telephone, yelling at him for stopping the treatment. (#1-1 at 16-17.)

         In April 2013 a company called MedImmune purchased AlphaCore for $20 million. Id. at 12.[9] Mr. Ward alleges that the sale price was based principally on the results of the trial in which Mr. Ward alone was participating. Id. The complaint alleges that AlphaCore was “a private company, ” and “[n]one of its shareholders, whether private entities or individuals, have ever been made public.” Id. at 12. The purchase price, according to Mr. Ward, was also never made public, although Dr. Schaefer knew what the sale price was, because he eventually told Mr. Ward about it. Id. Plaintiff alleges that Dr. Schaefer and the other ...


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