Estate of Alvarez v. The John Hopkins University

          MEMORANDUM OPINION

          BETH P. GESNER CHIEF UNITED STATES MAGISTRATE JUDGE.

         Currently pending are defendants' Motion for Discovery and Sanctions (“Motion”) (ECF No. 262), defendants' Supplemental Brief in Support of Request for Discovery and Motion for Sanctions (“Supplemental Brief”) (ECF No. 271), plaintiffs' counsel's Memorandum in Opposition to Defendants' Motion for Discovery and Sanctions (“Opposition”) (ECF No. 300), plaintiffs' counsel's Supplement to Plaintiffs' Counsel's Opposition to Defendants' Motion for Discovery and Sanctions (“Supplemental Opposition”) (ECF No. 326) and defendants' Reply Brief in Support of Request for Discovery and Motion for Sanctions (“Reply”) (ECF No. 332). In their Motion, defendants allege that plaintiffs' counsel have abused the litigation process and argue that plaintiffs' claims are “based on manufactured evidence, false sworn statements, and unsupportable allegations that even a cursory investigation would have shown.” (ECF No. 262 at 1). Defendants ask the court to (1) “permit defendants to pursue targeted discovery to ensure that the full scope of the abuses are uncovered and to allow defendants to use that discovery in support of an anticipated future motion under Rule 11” and (2) “require plaintiffs' counsel to reimburse defendants for the fees and expenses incurred as a result of their improper litigation conduct.” (ECF No. 262 at 1-2). The issues have been fully briefed, and no hearing is necessary. Loc. R. 105.6. For the reasons stated below, defendants' Motion (ECF No. 262) is denied.

         I. BACKGROUND

         Defendants allege that “recent discovery has revealed that plaintiffs' claims are based on manufactured evidence, false sworn statements, and unsupportable allegations that even a cursory investigation would have shown were unfounded.” (ECF No. 262-1 at 7). Defendants ask the court to allow defendants to “conduct targeted discovery to determine the full extent of plaintiffs' litigation abuses.” (Id. at 35). Specifically, defendants state that they anticipate filing a motion for sanctions^[1] under Federal Rule of Civil Procedure 11 asking for dismissal of all claims. (Id.) Prior to filing this motion, however, defendants ask permission to pursue targeted discovery “[t]o ensure that the [c]ourt has the information it needs to properly evaluate that motion, and to ensure that the full extent of plaintiffs' counsel's abuses are properly evaluated.” (Id.) Defendants also request that plaintiffs' counsel “be ordered to reimburse defendants for the substantial costs needlessly incurred as a result of the bad faith abuses described herein.” (Id. at 10). In response, plaintiffs' counsel argue that “there has been no ‘bad faith' on the part of [p]laintiffs' counsel justifying either the award of money sanctions, or the time-consuming, resource-draining exercise of discovery and rummaging through counsel's privileged files.” (ECF No. 300 at 11). Although defendants raise many allegations against plaintiffs' counsel, (ECF No. 262 at 5-27), the court will address only those allegations which are most relevant to the instant Motion.

         A. Pre-Lawsuit Investigation

         Defendants state that depositions of Selected Plaintiffs and their family members, taken in Guatemala, “revealed that many of the factual allegations of the [Third Amended Complaint (“TAC”)] are false and many of the plaintiffs likely have no connection to the Guatemala Experiments.” (ECF No. 262-1 at 14-15). Defendants further state that testimony from these depositions suggested that “plaintiffs' counsel did not undertake reasonable efforts to ensure that only proper plaintiffs were named in their complaint.” (Id. at 16). Defendants first raise concerns about the process by which plaintiffs were recruited for the lawsuit. (Id. at 15). Defendants note that “[d]eponents told a consistent story about how they were recruited, ” that they met plaintiffs' counsel's investigator, Roberto Paiz (along with his wife, Clara), “between 2012 and 2013 when he came to town looking for people whose names appeared on a list he held” and that Mr. and Mrs. Paiz “organized local ‘information sessions' to recruit plaintiffs.” (Id.) While defendants state that “[i]t appears likely that at least one list Mr. Paiz relied on was a list of names within a 2011 report issued as part of the Guatemala-led investigation into the Guatemala Experiments” (the “Archival Report”), defendants also note that “[t]he majority of deponents did not know what the list was or why their or their family members' names would have been included.” (Id. at 17). Accordingly, defendants argue that “[f]urther discovery is warranted to determine if there is any factual basis for linking the persons named as plaintiffs to the Guatemala Experiments other than similarities to a name in the Archival Report and what Mr. Paiz told these plaintiffs about their loved one's experiences.” (Id. at 18).

         Next, defendants raise concerns about the evidence used to identify plaintiffs alleged in the TAC to have been exposed to syphilis at a school in Puerto de San Jose as part of the Guatemala Experiments. (Id.) Defendants state that plaintiffs' counsel produced “certifications” created by Norma Alicia Lorenzo Lopez, the school's former director, purporting to bear the official letterhead and seal of the school and stating that certain plaintiffs attended the school during the relevant time period. (Id. at 19). During Ms. Lopez's deposition, however, defendants state that Ms. Lopez testified that no written records of students from this time period exist, and that she did not have the legal authority to issue such certifications. (Id. at 19-20). Defendants also allege that “Ms. Lopez testified that she had no personal basis to make the statements in her certifications.” (Id. at 20). Instead, defendants argue, she merely introduced Mr. and Mrs. Paiz to members of the community, and Mr. and Mrs. Paiz then accumulated information about the former students. (Id.) Accordingly, defendants argue, Ms. Lopez “relied exclusively on ‘sworn statements' provided to her by the plaintiffs and generated by Ms. Paiz” when issuing the certifications. (Id.) Defendants note, however, that “[e]ven if these sworn statements were reliable, she could not have reviewed each of them in person before issuing the certification, ” especially in light of the fact that “one of the individuals had already died at the time he supposedly delivered his sworn statement to her in person.” (Id. at 21). Defendants now seek discovery into the files of plaintiffs' counsel and their agents “to ascertain the provenance of the so-called ‘sworn statements' that formed the sole basis for Ms. Lopez's ‘certifications, '” as well as “discovery into the true provenance of these misleading ‘certifications,' and how and why plaintiffs' counsel named as plaintiffs in this lawsuit individuals for whom there appears to be no documentary evidence indicating they attended the school during the relevant time period, let alone that they were intentionally exposed to syphilis.” (Id.)

         Defendants also raise concerns about the methods used by plaintiffs' counsel to prepare plaintiffs' interrogatory answers. Defendants note that, prior to their depositions in Guatemala, deponents provided interrogatory answers in English that included an affirmation that the contents were true and correct to the best of the individual's knowledge, information, and belief. (Id. at 21-22). During the depositions, however, defendants state that “plaintiffs repeatedly testified that they signed interrogatory answers without understanding the contents.” (Id. at 22). Defendants also state that “[t]he interrogatory answers are riddled with demonstrably false statements.” (Id.) Defendants argue that “[h]aving plaintiffs sign answers to interrogatories that they could not understand, which contain false information, constitutes bad-faith abuse of the judicial process.” (Id. at 23). Accordingly, defendants request discovery of “[p]laintiffs' U.S. Counsel's communications regarding the preparation and execution of interrogatory answers by plaintiffs.” (Id. at 35).

         Finally, defendants allege that “[p]laintiffs' counsel have a pattern of ‘dropping' plaintiffs and claims in this case when forced to provide evidence.” (Id. at 33-34). Defendants note that plaintiffs' counsel now seek to dismiss at least 684 of the 842 plaintiffs identified in the TAC, including all claims for children, grandchildren, and wrongful death plaintiffs, as well as claims for spousal infection with syphilis. (Id. at 34). Defendants argue that “plaintiffs' counsel have long insisted that they could prove a direct causal link between all plaintiffs infected with syphilis and those individuals who allegedly contracted syphilis in the Guatemala Experiments.” (Id. at 12). Specifically, defendants argue, the TAC stated that “many [plaintiffs] have the Nichols strain” of syphilis, which would allegedly link plaintiffs to the Guatemala Experiments. (Id. at 13). Defendants note, however, that plaintiffs' counsel only produced 10 lab reports that showed that a plaintiff tested positive for the Nichols strain, although 842 plaintiffs were named in the TAC.^[2](Id.) Further, defendants argue, plaintiffs' counsel failed to produce positive test results for three plaintiffs specifically identified in the TAC as individuals who “tested positive for the Nichols Strain of syphilis.” (Id. at 14 (quoting ECF No. 127 at ¶¶ 59, 73)). Defendants further allege that “it is quite likely that some or all of the lab tests on which plaintiffs claimed to rely were never performed at all, ” as they were allegedly performed by plaintiffs' expert Dr. Orozco.^[3] (Id.). In sum, defendants argue that, had plaintiffs' counsel conducted a diligent investigation prior to filing this lawsuit, they would have discovered that these claims were unfounded. (Id. at 7). Defendants argue that, because plaintiffs' counsel did not conduct a diligent investigation, defendants have incurred the substantial burden and expense of “time expended conducting factual investigation concerning the several hundred plaintiffs who supposedly have been dropped and to discover falsehoods that were known or should have been known by plaintiffs' counsel at the outset.” (Id. at 34).

         In response, by way of background, plaintiffs' counsel notes that, following the publication of the U.S. Presidential Commission's Report on the Guatemala Experiments in 2011, the attorneys of the Meridian 361 International Law Group began investigating the experiments from the United States. (ECF No. 300 at 17). At the same time, Juan Pablo Rodriguez and his law firm, Escritorio Jurídico Rodriguez Fajardo y Asociados (“RFA”) began its own investigation in Guatemala, with the assistance of an investigative team led by Roberto and Clara Paiz. (Id. at 18). Specifically, the team's investigation “included obtaining documentary evidence about the Experiments from archives, using the list of victims named in the Guatemalan Archival Report, and working with sociologists to identify regions of the country from which different names originated.” (Id. at 19). RFA and its investigative team met with current and former representatives of the Guatemala Office of the Human Rights Ombudsman, including Dr. Pablo Werner, who was retained by RFA to “screen potential clients to determine whether they exhibited signs and symptoms consistent with an STD, and if so, to author a report.”^[4] (Id.) RFA later retained Dr. Abdiel Orozco to test blood from potential clients for exposure to syphilis. (Id.) RFA then entered into agreements for legal services directly with plaintiffs and, in the fall of 2013, entered into an agreement with plaintiffs' U.S. counsel. (Id. at 19-20). Counsel then operated “under a necessary division of labor, ” with U.S. counsel handling the litigation in this court, and RFA handling aspects of the case centered in Guatemala. (Id. at 20).

         Plaintiffs' counsel argue that defendants “fail to consider the unique nature of this international litigation, the circumstances facing Plaintiffs' counsel, and the backgrounds of the Plaintiffs themselves.” (Id. at 33). Specifically, plaintiffs' counsel argue that they “reasonably relied on the work of a Latin American attorney familiar with the language and culture of Latin America, who had the presence and proper connections inside Guatemala to investigate locally and screen potential clients.” (Id.) As to RFA's investigation, plaintiffs' counsel argue that RFA properly investigated plaintiffs' claims by using the Archival Report to identify the names of Guatemalan individuals who were victimized by the Guatemala Experiments, interviewing victims, confirming that the individuals and families they interviewed had a connection to the Guatemala Experiments through identification documents and witness interviews, obtaining sworn affidavits or written statements confirming the plaintiffs' relationship to the Guatemala Experiments, and retaining two well-credentialed medical officials to screen clients and perform laboratory testing. (Id. at 33-34). Further, plaintiffs' counsel argue, they “made their own reasonable efforts within their abilities to review RFA's client pool and evidence supporting their claims” by reviewing witness statements medical and laboratory reports and interviewing plaintiffs, Drs. Werner and Orozco, and American experts regarding the transmission of STDs and laboratory testing. (Id. at 34-35). Accordingly, plaintiffs' counsel argue, they properly relied on RFA and Drs. Werner and Orozco, individuals with localized knowledge and resources, to conduct initial screening of plaintiffs. (Id. at 36).

         Plaintiffs' counsel also argue that “[d]efendants dishonestly misrepresent witness testimony and improperly attribute ‘discrepancies' between allegations in the Complaint, interrogatory answers, documents, and deposition testimony to ‘bad faith' or ‘manufacturing evidence' on the part of [p]laintiffs' counsel, when such discrepancies occur in all civil litigation.” (Id. at 35). Specifically, they argue, “[i]nconsistencies between witness testimony and documentary evidence happen routinely in civil litigation” and these “discrepancies” are “matters for cross-examination and determination by the jury at trial.” (Id. at 36). Plaintiffs' counsel note that most of these deponents have received only a few years of primary education, some cannot read or write, and many have received little modern medical care. (Id.) Additionally, plaintiffs' counsel argue, “[t]here was undoubtedly an element of unfamiliarity, discomfort, and trepidation” associated with the depositions, particularly when “[t]he culture in many rural areas of Guatemala is such that embarrassing personal information is not discussed publicly, particularly with members of the opposite sex, and on top of that, the language barrier is significant.” (Id. at 37). In light of these difficulties, plaintiffs' counsel argue, witness testimony does not establish that any allegation in the TAC or interrogatory answers^[5] was false, but rather creates questions of fact for the jury to resolve. (Id.)

         Plaintiffs' counsel argues that “[p]erhaps the most glaring example of Defendants' misrepresentation of witness testimony regards the deposition of Norma Alicia Lorenzo Lopez.” (Id. at 43). Plaintiffs' counsel note that defendants claim that the “certifications” signed by Ms. Lopez attesting to the fact that fifteen plaintiffs were students at the Puerto de San Jose school in the 1940s “were ‘manufactured, false, and invalid' because Ms. Lopez had ‘no personal basis' on which to make them, did not rely on her own knowledge of the community, and ‘merely introduced' RFA's investigators to the victims, who then ‘gathered information about who attended the school.'” (Id. at 44-45 (quoting ECF No. 262-1 at 18)). Rather, plaintiffs' counsel argue, Ms. Lopez actually testified that she was the principal of the school at the time, but that records from the school had been destroyed. (Id. at 45). To assist RFA and their investigative team identify students, however, she spoke with town residents, starting with individuals she knew had attended the school, and “asked them to recall their classmates until she had created a list of people.” (Id.) Accordingly, plaintiffs' counsel argue, Ms. Lopez “gathered information” about students from the school, “based on her knowledge, the knowledge of others she knew, and the common knowledge of the community, ” and signed “certifications” to that effect.^[6] (Id. at 46). While Ms. Lopez did testify that “she learned that she was not supposed to sign documents on behalf of the school for use in this case, ” plaintiffs' counsel argue that “[s]he did not ‘violate' any official Guatemalan government law or ‘rules'” in signing these certifications. (Id.)

         In their Reply, defendants argue that “plaintiffs' U.S.-based counsel cannot avoid responsibility for the work of their foreign co-counsel, ” Mr. Rodriguez. (ECF No. 332 at 12). Defendants argue that “[m]uch of the investigatory work to prepare this case appears to have been undertaken in 2012-13” by Mr. Rodriguez and his firm, RFA. (Id. at 8). Defendants note, however, that “[t]hroughout this period, Mr. Rodriguez was a partner in the Meridian 361 law firm.” (Id. at 8-9). Defendants also note that, throughout the case, Mr. Rodriguez and RFA have been listed on pleadings and motions as “Of Counsel, ” U.S. counsel have referred to Mr. Rodriguez as “co-counsel, ” and plaintiffs' counsel have described this case as being brought by three firms, including RFA, on each of their respective websites. (Id. at 9-10). Accordingly, defendants argue, “[p]laintiffs' counsel cannot deputize Mr. Rodriguez to take crucial actions on their behalf and then disclaim knowledge when those actions give rise to a legal dispute.” (Id. at 11). Defendants further argue that “[a]t a minimum, further discovery is warranted to get to the bottom of the counsels' division of responsibility, Mr. Rodriguez's misconduct . . . and which of plaintiffs' counsel was involved in, knew of, or had reason to know of the misconduct.” (Id. at 13).

         Similarly, defendants argue that “[p]laintiffs' counsel cannot explain away their clients' deposition testimony, ” as “[t]hat testimony reveals significant lapses in professional conduct by plaintiffs' counsel.” (Id. at 19). While plaintiffs' counsel represent that they asked Mr. Rodriguez to explain interrogatory answers to plaintiffs, ask them to verify the information, and sign, defendants argue that “some plaintiffs may have received no such instruction.”^[7] Defendants further argue that plaintiffs' counsel cannot “try to create a triable dispute of fact-and attempt to counter unhelpful deposition testimony-by offering the Court a set of interrogatory responses signed by a witness who did not see a Spanish translation, did not know the purpose of the document, did not know that his signature represented an oath as to the truthfulness of its contents . . . and failed to testify consistently in his deposition.” (Id.) As to Ms. Lopez' “certifications, ” defendants argue that Ms. Lopez testified that “she merely introduced individuals who may have been students at the school to the Paizes, and did not participate in interviews during which the Paizes elicited information about their purported school attendance.” (Id. at 22-23). Accordingly, defendants argue, “[i]t thus appears that plaintiffs' counsel and their investigators generated evidence by obtaining unauthorized official-looking certifications by a declarant who had no personal knowledge of the statements that she made.” (Id. at 23).

         B. Dr. Orozco's Lab Reports and Testing

         Defendants also state that, during the course of discovery, they developed several concerns regarding the lab reports and testing performed by plaintiffs' former expert, Dr. Orozco. First, defendants note that, during discovery, plaintiffs produced 257 lab test reports, of which all but four showed a positive result for syphilis and, in some cases, the Nichols strain. (ECF No. 262-1 at 26). On March 3, 2019, however, plaintiffs produced 42 additional reports, 19 of which showed a negative test for syphilis. (Id.) Defendants note that those 19 individuals were included as plaintiffs in the TAC, although the lab reports were dated in December of 2014, prior to the filing of the first complaint. (Id.) Defendants also argue that there is evidence that plaintiffs' counsel possess additional negative lab reports that have not been produced to defendants, as Dr. Orozco testified that he brought “hundreds of lab reports” to his deposition, and that “at least ten percent” of the tests could be negative. (Id. at 27). Defendants state, however, that plaintiffs' counsel refused to produce all of Dr. Orozco's lab reports in discovery.^[8] (Id.) Plaintiffs' counsel did permit defendants to view the reports during Dr. Orozco's deposition, and defendants estimate that there were approximately 72 total negative lab reports. (Id.) Accordingly, defendants argue, plaintiffs' counsel have withheld key evidence “that disproved the basis for naming individual plaintiffs.”^[9](Id. at 26).

         Defendants also note that Dr. Orozco's deposition testimony raised several concerns about the validity of his testing and reports. First, defendants note, on March 3, 2019, plaintiffs produced a set of photographs described by plaintiffs' counsel as “photos of Dr. Orozco's lab provided by him.” (Id. at 29). During his deposition, Dr. Orozco testified that he had taken the photographs at his laboratory and described the equipment shown in the photograph and how he used that equipment to conduct the tests detailed in his reports. (Id.) The next day, defendants realized that the photographs were actually taken at an unrelated hospital laboratory. (Id. at 30). Plaintiffs subsequently withdrew Dr. Orozco as an expert. (Id.) The deposition continued at defendants' request, however, and defendants note that Dr. Orozco went on to admit that an official sanitary license for his laboratory had been altered by a handwritten mark changing the “7” in “2017” into a “9.” (Id. at 31). Defendants also state that Dr. Orozco testified that he was not listed as an active member of the Guatemalan College of Pharmacists and Chemists between November 1, 2014 and March 11, 2015, when he performed the bulk of the tests for this case, although he also stated that he has retroactively corrected this status. (Id.) Defendants further note that Dr. Orozco admitted that he had copied a large portion of his expert report from other sources, stating that he was pressured to quickly produce a report by plaintiffs' local counsel, Mr. Rodriguez. (Id. at 31-32). Finally, defendants report that Dr. Orozco stated that he did not perform certain DNA sequencing studies with which the Nichols strain of syphilis could be detected at his own laboratory, instead claiming that he conducted the tests at another lab in Guatemala.^[10] (Id. at 33).

         Defendants argue that Dr. Orozco's false deposition testimony “leaves in doubt whether any lab tests were ever performed on any plaintiff.”^[11] (Id.) While defendants note that plaintiffs are no longer relying on Dr. Orozco's tests and have subsequently dropped many claims, defendants argue that “this question is still relevant to defendants' motion for sanctions, ” noting that “[d]efendants and the [c]ourt do not yet know who was actively complicit in fabricating this evidence.” (Id.) Accordingly, defendants ask to examine Dr. Orozco's office computer and email system, plaintiffs' U.S. counsel's file of communications with Dr. Orozco and his employees regarding the testing of plaintiffs and the preparation of his report, and Mr. Rodriguez' file, including all communication with Dr. Orozco. (Id. at 35-36).

         In response, plaintiffs' counsel argue that “[d]efendants improperly attribute the misconduct of an expert to [p]laintiffs' counsel.” (ECF No. 300 at 48). While plaintiffs' counsel acknowledge that Dr. Orozco testified falsely during his deposition, they state that they “absolutely were not complicit in it, and did nothing to encourage or facilitate it.” (Id.) Rather, plaintiffs' counsel argue, they took immediate action by informing defense counsel and the court and withdrawing Dr. Orozco as an expert. (Id. at 48-49). As to the portions of his report that were copied from other sources, plaintiffs' counsel argue that “the substance of the ‘plagiarized' portions were simply a step-by-step description of the standard methodology for laboratory tests for syphilis.” (Id. at 49). Further, plaintiffs' counsel state, “Dr. Orozco did not ‘plagiarize' his opinions or conclusions, which were contained in his lab reports for the specific [p]laintiffs, not his Rule 26 report.” (Id. at 50). Plaintiffs' counsel also note that “Dr. Orozco was a well-credentialed expert witness” that they had interviewed prior to his deposition, and that “[t]hey had no reason to question the validity of his testing or the opinions he offered regarding the [p]laintiffs' exposure to syphilis.” (Id. at 50). Additionally, plaintiffs' counsel argue, “[d]efendants make the unsupported leap that because Dr. Orozco falsely testified about photos of his lab, or copied parts of his report from descriptions on the Internet, it must mean not only that all of his testing was a lie, but also, that [p]laintiffs' counsel must have known about that lie.” (Id.) To the contrary, however, plaintiffs' counsel argue that “[d]efendants have no proof that the testing done by Dr. Orozco was fraudulent, and certainly no proof that if it was, [p]laintiffs' counsel knew about it.” (Id.) Finally, plaintiffs' counsel argue that they provided Dr. Orozco's lab reports to defendants as soon as they received them from RFA and Dr. Orozco, and therefore “did not purposefully withhold any evidence in bad faith.”^[12] (Id. at 51)

         In their Reply, defendants argue that Dr. Orozco's perjury went both to the heart of his testimony as an expert as well as the heart of plaintiffs' case, as “it was the direct cause of their abandoning the claims of hundreds of plaintiffs that hinged on Dr. Orozco's lab tests, reducing their plaintiff pool to 157 persons.” (ECF No. 332 at 15). Defendants also note that they have received 22 new sets of lab reports from a different lab in Guatemala pertaining to plaintiffs who were previously the subject of Dr. Orozco's lab reports showing positive results. (Id. at 16). 16 of these reports, however, now show negative results. (Id.) Accordingly, defendants argue, “[a]ssuming the new reports are valid, it is therefore virtually certain that Dr. Orozco's reports are fabrications.” (Id.)

         In sum, defendants argue that “plaintiffs' claims are based on manufactured evidence, false sworn statements, and unsupportable allegations that even a cursory investigation would have shown were unfounded.” (ECF No. 262 at 1). Accordingly, defendants ask that the court “permit defendants to pursue targeted discovery to ensure that the full scope of the abuses are uncovered and to allow defendants to use that discovery in support of an anticipated future motion under Rule 11.” (Id.) Defendants further ask the court to “require plaintiffs' counsel to reimburse defendants for the fees and expenses incurred as a result of their improper litigation conduct.” (Id. at 2). In response, plaintiffs' counsel argue that defendants have failed to establish that they are entitled to either request. (ECF No. 300 at 10-11). Similarly, plaintiffs' counsel contest the truth of defendants' allegations. (Id.) It should be noted that many of the arguments raised by ...