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Sanctions and Shenanigans in Boston Scientific Whistleblower Lawsuit

By Joseph Fawbush, Esq. on October 24, 2019

"This case is what happens when you cross an approach to discovery à la Inspector Clouseau with a corporate lawyer caricature found in cartoon caption contests."

-U.S. Magistrate Judge Steven Rau

A federal district court magistrate judge in Minnesota was clearly fed up over the discovery "shenanigans" offered by one of the parties to a whistleblower lawsuit over defective defibrillator devices. Judge Steven Rau ruled on October 16 that Boston Scientific must get its "just deserts" for failing to include an ex-employee with information central to the case in earlier discovery requests.

Those just deserts include attorneys' fees for the motion seeking sanctions, as well as access to records Boston Scientific was seeking to withhold, among others.

An Intentional Withholding

The whistleblower claims Boston Scientific knew about defects in two of its defibrillators and concealed those defects from the FDA during the approval process.

In discovery, Boston Scientific had provided the name of an employee to be deposed regarding communications with the FDA. However, that employee claimed to not be involved with the FDA at all. Boston Scientific did not provide the name of a second, ex-employee, with more direct knowledge. It argued that opposing counsel should already have been aware of the existence of the second employee since she was mentioned in almost 400 of the 30,000 discovery documents.

Judge Rau didn't buy it, and accused Boston Scientific of wanting to use the second employee as a witness, withholding that information until the final stages of discovery.

A Fed-Up Judge

Counsel for the whistleblower did not get let off the hook entirely, however. Judge Rau indicated that "both parties share the blame" in discovery that hasn't gone well since it began a year and a half ago. But even though Judge Rau expressed displeasure that counsel for plaintiff failed to adequately hold Boston Scientific accountable for slow-walking in discovery, the failure was not on a level with the lack of professionalism and courtesy displayed by Boston Scientific.

"Not even the one-eyed man would be king over this disaster," Judge Rau lamented.

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