An Illinois federal judge ordered Boehringer Ingelheim International GmbH (BII) last month to reimburse Plaintiffs for the offices they rent for European depositions in the multidistrict litigation (MDL) over the blood thinner Pradaxa. This was a discovery-related sanction that comes in addition to last year’s nearly $1 million fine. When U.S. District Judge David Herndon imposed sanctions against BII and U.S. unit Boehringer Ingelheim Pharmaceuticals Inc. (BIPI) in December, he instructed the companies to make European employees available for depositions in the U.S. Judge Herndon said that order, along with the $931,500 fine, was punishment for the companies’ failure to timely enact a litigation hold.
But in January, the Seventh Circuit ruled that Judge Herndon had overstepped his authority by requiring the foreign employees to be deposed in the U.S. Judge Herndon subsequently rescinded that portion of his order. But on March 12, he directed the Plaintiffs to rent office space in Amsterdam through August for use in connection with the European depositions. Judge Herndon ordered BII and BIPI to pay for the office space, including any space used by the Plaintiffs since the December sanction order. In addition, BII and BIPI must reimburse the Plaintiffs for the court reporters, videographers and interpreters they use in Europe, as well as the travel expenses for the special masters.
Judge Herndon also said he was in the process of restructuring the December sanctions order in part because it left some issues unresolved. A revamped order “will be docketed shortly,” he said. Even though the Seventh Circuit did not vacate the $931,000 fine, Judge Herndon saw fit to reiterate his rationale for the penalty. A week after he imposed the fine in December, Judge Herndon ruled that the companies could well be hit with even more sanctions. After discovery is completed for the bellwether cases, Judge Herndon said he may issue an adverse jury instruction related to the misconduct or impose another non-monetary penalty, such as striking certain affirmative defenses or barring the companies from making certain arguments at trial. It is very clear that Judge Herndon will not tolerate discovery abuses or failures to comply with court orders.
The first bellwether trial in the MDL is scheduled to begin in September. The suits contend that Pradaxa causes severe bleeding and other injuries. This case is most significant and it will be watched closely.