Higgins v. Boston Scientific Corporation

Background

Steven Higgins brought this qui tam action on behalf of the United States and California under the False Claims Act and the California False Claims Act. He alleged that Boston Scientific sought regulatory approval for, and sold, defective Cognis and Teligen cardiac-defibrillator devices. The United States and California declined to intervene, and Higgins was allowed to continue the action on their behalf.

This order addressed Higgins’s motion for sanctions concerning discovery, not the underlying fraud allegations. The parties had experienced prolonged and contentious discovery disputes. Boston Scientific initially identified ten people who might have discoverable information, including people connected to the devices’ launch and the company’s communications with the Food and Drug Administration. On July 30, 2019—the final day of fact discovery—it amended its disclosures to add seven new witnesses and change some earlier descriptions.

The dispute focused on four newly disclosed witnesses: Erika Huffman, David Breiter, Torsten Kayser, and Sharon Zurn. The court found that Huffman was a central witness concerning Boston Scientific’s communications with the Food and Drug Administration and should have been included in the initial disclosures. It also concluded that Boston Scientific’s late disclosure of Huffman, Breiter, Kayser, and Zurn was neither harmless nor substantially justified. The court found no Rule 26 violation concerning Brian Scovil, Jim Gilkerson, or Tim Smith because the discovery process otherwise made those individuals known to Higgins or gave him an opportunity to depose them.

Legal standard

Federal Rule of Civil Procedure 26 requires a party to identify, early in the case, each person likely to have discoverable information that the party may use to support its claims or defenses, along with the subjects of that information. A party must timely correct or supplement a disclosure that becomes materially incomplete or incorrect. Under Rule 37, a party that fails to comply generally may not use the undisclosed information or witness unless the failure was substantially justified or harmless. The court may also impose other sanctions, including requiring payment of expenses, limiting evidence, or ordering additional discovery.

Court’s analysis

The court rejected Boston Scientific’s argument that Higgins should have recognized Huffman’s importance from references to her in documents produced during discovery. The court reasoned that Boston Scientific had greater knowledge of its own employees and of the government investigation, and that its initial disclosures shaped the parties’ later discovery decisions. The court found that Boston Scientific’s failure to disclose the four witnesses until the end of discovery prejudiced Higgins by limiting his document requests, electronic-search discussions, interrogatories, and depositions.

The court also found that Boston Scientific had intentionally withheld the witness information as part of a broader discovery strategy. It criticized Boston Scientific’s conduct in several discovery disputes, while also noting that Higgins had handled some aspects of discovery poorly, including delaying some discovery and placing too many depositions near the end of the discovery period. The court nevertheless concluded that the parties’ conduct should not be treated equally because Boston Scientific’s actions had restricted Higgins’s ability to investigate the claims.

Sanctions and disposition

The court concluded that simply excluding the newly disclosed witnesses would not adequately remedy the violation because Higgins needed access to the evidence concerning Boston Scientific’s communications with the Food and Drug Administration. It therefore ordered Boston Scientific to produce, within 14 days, every document from Huffman, Breiter, Kayser, and Zurn that matched the parties’ agreed electronic-search terms.

Higgins was given 14 days after production to decide whether depositions were necessary. If he chose to depose any of the four witnesses, Boston Scientific had to make its counsel and the witnesses available within 60 days of the order, and each deposition could last up to eight hours. The court also directed that the existing pretrial deadlines be extended by at least 60 days.

Boston Scientific was barred from using documents or testimony to support its defenses or oppose Higgins’s claims at later proceedings, including summary judgment and trial, unless it could affirmatively show that the material had been produced during ordinary discovery or in response to the order. The court denied, at that time, Higgins’s request for an adverse-inference sanction, which would allow the court or jury to draw a negative conclusion from the discovery violation. The court said it could revisit that decision if Boston Scientific failed to comply.

The court ordered Boston Scientific to pay Higgins’s costs and attorney’s fees for the sanctions motion and for the additional discovery authorized by the order. The parties were first directed to try to resolve the amount themselves; if they could not, Higgins could submit an affidavit describing the costs and fees.

The order states that Higgins’s motion for sanctions was GRANTED IN PART and DENIED IN PART.