United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PLAINTIFF'S RENEWED
MOTION FOR SANCTIONS (#151).
Page Kelley, United States Magistrate Judge.
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
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. 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.
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.)
tort action,  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.
somewhat tortuous history of this matter 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.)
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.)
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
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. (#114-5.)
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 emails that were produced were not
recovered from a deleted email 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.
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.
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.
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
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.)
Mr. Ward participates in the drug trial.
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. 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.
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.)
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.
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.)
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.
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.
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.)
April 2013 a company called MedImmune purchased AlphaCore for
$20 million. Id. at 12. 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 ...