Geralynn Boone, Executrix of the Estate of Mary Boone v. Boehringer Ingelheim Pharmaceuticals, Inc. et al Docket Number:CPLHHDCV166067796S Superior Court of Connecticut, Judicial District of Hartford, Complex Litigation Docket at Hartford Caption Date: February 18, 2018 Moll, Ingrid L., Superior Court Judge ORDER RE PLAINTIFF'S REQUEST FOR SPOLIATION CHARGE (#258.00) *1 Before the court is plaintiff Geralynn Boone's request for spoliation charge dated January 5, 2018 (request) (#258.00). The court heard oral argument on January 29, 2018, as well as supplemental oral argument on February 16, 2018. Jury selection is underway, and evidence is scheduled to commence on February 22, 2018.[1] Plaintiff seeks the unusual relief of a determination at this time that the elements of a spoliation charge, ordinarily given to the jury for determination, should be deemed proven and that the jury should be so instructed. Plaintiff seeks a spoliation charge relating to various materials of the following three individuals or groups of individuals: (1) Dr. Thorsten Lehr; (2) BI sales representatives; and (3) Dr. Martina Bruckmann, Dr. Jorge Caria, and Ingrid Schulz. Plaintiff claims that the allegedly spoliated evidence relating to these individuals goes directly to the issues of assessing and adjusting Pradaxa dosing based on blood concentrations, the number of measurements needed to assure proper dose, and what was told to prescribing physicians about Pradaxa. Plaintiff abandoned her request for a spoliation charge regarding the second category (BI sales representatives) during the February 16, 2018 hearing.[2] The court has carefully considered plaintiff's request, defendants Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim International GmbH's (together, defendants or BI) objection dated January 23, 2018 (#265.00), defendants' supplemental memorandum dated February 7, 2018 (#275.00), and plaintiff's sur-reply dated February 13, 2018 (#290.00). For the reasons stated below, the court grants in part and denies in part plaintiff's request. The request is granted to the extent it seeks a spoliation charge relating to Dr. Thorsten Lehr; the request is otherwise denied. I. DISCUSSION A. MDL No. 2385 By way of background, in 2012, pursuant to 28 U.S.C. § 1407, the United States Judicial Panel on Multidistrict Litigation (Panel) ordered the transfer of various federal actions involving Pradaxa product liability claims to the United States District Court for the Southern District of Illinois, assigning them to then-Chief Judge David R. Herndon for coordinated or consolidated pretrial proceedings.[3] See In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, Case 3:12-md-02385-DRH-SCW, MDL No. 2385 (S.D.Ill.). In the transfer order, the Panel found that “these actions involve common questions of fact, and that centralization under Section 1407 in the Southern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All the actions share common factual questions arising out of allegations that plaintiffs suffered severe bleeding or other injuries as a result of taking the drug Pradaxa (dabigatran etexilate) and that defendants did not adequately warn prescribing physicians of the risks associated with Pradaxa, including the potential for severe or fatal bleeding, and that there is no reversal agent to counteract the Pradaxa's anticoagulation effects. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary.” *2 Upon the transfer, discovery problems arose almost immediately. See MDL Case Management Order Number 50 (MDL CMO 50)[4] at 3 (attached to Plaintiff's Request for Spoliation Charge at Exhibit A). In 2013, the plaintiffs' steering committee (PSC) brought a second motion for sanctions against Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI) and Boehringer Ingelheim International GmbH (BII) for various alleged discovery abuses, specifically, (1) the defendants' failure to preserve the custodial file of Professor Thorstein Lehr (a high-level scientist formerly employed by BII intricately involved in Pradaxa), as well as the failure to identify Prof Lehr as a custodian with potentially relevant evidence; (2) the defendants' failure to preserve evidence relating to and/or untimely disclosure and production of material in the possession of the defendants' Sales Representatives, Clinical Science Consultants and Medical Science Liaisons; (3) the production issues related to the G Drive (one of the defendants' shared networks); and (4) the failure to preserve and/or untimely production of business related text messages on certain employees' cell phones. Id. at 2. After a hearing on the PSC's motion, Judge Herndon set forth his findings in MDL CMO 50. The court found that the defendants' preservation obligation was triggered in February 2012 (as to BIPI) and, at the latest, April 2012 (as to BII). Id. at 2; see also id. at 13-19. The court further found that “there is no question that, as of June 2012, both defendants knew that nationwide Pradaxa product liability litigation, involving hundreds of cases, was imminent. Thus, while the defendants may have been able to justify adopting a narrow litigation hold as to some employees prior to June 2012, they cannot justify failing to adopt a company-wide litigation hold as of June 2012—when they knew nationwide Pradaxa product liability litigation was imminent.” (Emphasis in original; footnote omitted.) Id. at 2-3. Judge Herndon recited a number of so-called “discovery abuses” that preceded the PSC's second motion for sanctions. For example, the court stated that “[a]lmost since its inception, this litigation has been plagued with discovery problems primarily associated with misconduct on the part of the defendants. The Court is continuously being called upon to address issues relating to untimely, lost, accidentally destroyed, missing, and/or 'just recently discovered' evidence ... The Court has been exceedingly patient and, initially, was willing to give the defendants the benefit of the doubt as to these issues. However, as the Court has warned the defendants in the past, when such conduct continues, there is a cumulative effect that the Court not only can but should take into account.” Id. at 3, 4. The court proceeded to review issues that had arisen up until that point and the sanctions imposed as a result thereof (i.e., a fine and a mandatory injunction). That discussion (see id. at 5-13) need not be repeated herein, other than to note Judge Herndon's strong, disapproving language regarding how the defendants had handled the discovery process in the MDL thus far. B. Dr. Thorsten Lehr *3 In MDL CMO 50, Judge Herndon made the following findings regarding the defendants' failure to issue a litigation hold regarding Dr. Thorsten Lehr, rendering unavailable his custodial file, with certain exceptions[5]: 1. Background Professor Thorsten Lehr is a pharmacometrician formerly employed by BII (Doc. 311 p. 9). While working for BII, Prof. Lehr was a high-level scientist that worked on Pradaxa and published articles on Pradaxa as a lead author (Doc. 302 p. 5). Prof. Lehr was responsible for quantitative analysis relating to the interaction between Dabigatran and specific patient populations (Doc. 302-5 p. 5). Prof. Lehr left employ at BI at the end of September 2012—well after the defendants were under a duty to preserve evidence relevant to this litigation (Doc. 302-4 p. 6; Doc 302-5 p. 5). Dr. Lehr is currently employed by Saarland University (Doc. 302-5 p. 5). There is a cooperation agreement between BII and Saarland University under which Prof. Lehr continues to have access to certain Pradaxa clinical trial data (Doc. 302-5 p. 5). According to the PSC, BII never disclosed Prof. Lehr in any answers to the PSC's interrogatories. Further, Prof. Lehr was not on the list of custodians with relevant knowledge provided by BII. Id. The PSC did not learn of Prof Lehr's relevance to this litigation until September 25, 2013 when Lehr was identified during the deposition of one of the defendants' employees, Martina Brueckman (Doc. 317-1 p. 6). That same day, the PSC requested Prof. Lehr's custodial file be produced by October 7, 2013 (Doc. 317-1). BII did not respond to the request for production of Prof Lehr's custodial file for two weeks and at that time indicated that it would need 45 days to produce his custodial file (invoking a case management order previously adopted by the Court) (Doc. 317-1). On October 25, 2013, in a letter to the Court, BII stated that Prof Lehr “was not subject to a litigation hold when he left BII because he had not been identified as a custodian” (Doc. 302-5 p. 5). On November 4, 2013, BII again informed the Court that Prof. Lehr was not subject to a litigation hold when he left the company because he had not been identified as a custodian (Doc. 302-4 p. 6)[.] On November 7, 2013, counsel for BII (Beth S. Rose) provided an affidavit with additional information pertaining to Prof Lehr (Doc. 302-6). The affidavit provides, in relevant part, as follows: Contemporaneous with this Affidavit BII is making the production of responsive e-mails from Thorsten Lehr. Thorsten Lehr is a former BII employee who formally left the company at the end of September 2012. At the time he left, Prof. Lehr was not identified as a custodian and, therefore, was not subject to the document preservation notice. We have confirmed with Prof Lehr that when he left the company, he did not take his workstation or any other documents with him. Prof. Lehr's workstation, user share, and paper documents are not available to be collected. The only part of Prof Lehr's custodial file available for collection is his e-mails. (Doc. 302-6 ¶2.) In other words, with the exception of Prof. Lehr's emails, BII failed to preserve Prof Lehr's custodial file at a time when it was under a duty to do so. *4 BII has stated that they chose not to preserve Dr. Lehr's custodial file because, at the time of his departure in September 2012, he had not been identified as a custodian. This statement lends itself to one of two interpretations. Either BII is asserting that it did not realize that Prof. Lehr was a custodian with potentially relevant information and therefore failed to preserve his custodial file when he left the company; or BII is asserting that because the PSC had not yet requested Dr. Lehr's custodial file, it had no duty to preserve Dr. Lehr's custodial file (even if it contained information relevant to this litigation). Both interpretations are problematic for BII. 2. BII Cannot Believably Contend it Did Not Recognize Prof. Lehr as a Custodian with Potentially Relevant Information BII cannot believably contend it did not know Prof Lehr's custodial file contained information relevant to this litigation. Prof Lehr was unquestionably a high-level scientist actively involved in working on Pradaxa. For instance, in an email dated May 31, 2012, Dr. Yasser Khder (employed by BII) introduces “Dr. Thorsten Lehr” to his “colleagues” as “our company expert for dabigatran” (Doc. 317-1 p. 16). He goes on to state that Prof Lehr “did all the M&S for the [REDACTED BY THE COURT] program (Doc. 317-1 p. 16). Dr. Lehr will get in contact with you to further discuss the different aspects to this request” (Doc. 317-1 p. 16). The PSC has also learned that Prof Lehr co-authored at least 10 Dabigatran (Pradaxa) articles published between September 2011 and September 2013 (Doc. 317-1 pp. 9-14). Further, although Prof. Lehr is no longer employed by BII, he continues to work with BII scientists on future Pradaxa publications (Doc. 317-1 p. 14). Even more telling, is a group of company emails exchanged in 2011 and 2012 reflecting an internal debate over whether a scientific paper being drafted by Prof Lehr (the “exposure paper”) should include Prof. Lehr's conclusions regarding Pradaxa's therapeutic range. In the exposure paper, Prof Lehr (and his co-authors) concluded, in the early versions of the paper, that both safety and efficacy of dabigatran are related to plasma concentrations and conclude that there is a therapeutic range for Pradaxa and further specify what that range is (Doc. 317-1 p. 20). These emails reveal Dr. Lehr's desire to publish a paper that included a therapeutic range for Pradaxa was highly controversial. An email from Dr. Andreas Clemens, dated December 19, 2011, demonstrates the discussion and disagreement flowing through the company regarding Dr. Lehr's conclusions (Doc. 317-1 p. 23). As does a July 30, 2012 email from Stuart Connolly (Doc. 317-1 p. 29). Ultimately, an email from Dr. Jeffrey Friedman, dated October 23, 2012, seems to require a revised version of the exposure paper without inclusion of the therapeutic levels suggested by Prof. Lehr (Doc. 317-1 p. 31). An email from Dr. Clemens to Prof. Lehr, dated October 24, 2012, confirms that (Doc. 317-1 p. 33). The following email describes Prof. Lehr's position on the matter at the end of October 2012. October 31, 2012 email from Dr. Andreas Clemens Thorsten wants to tailor the message according our ideas. I see value in this manuscript especially with regard to a manuscript which will in the next step focus on lab levels (aPTT) to give the physicians an understanding what they have to expect in specific situations regarding aPTT. The world is crying for this information—but the tricky part is that we have to tailor the messages smart. Thorsten wants to do that. (Doc. 317-1 p. 17.) Eventually, another scientist, Paul Reilly, was tasked with revising the exposure paper. The following email from Paul Reilly further demonstrates the internal debate over inclusion of an optimal therapeutic range in the exposure paper: *5 I have been facing heavy resistance internally on this paper about the concept of a therapeutic range, at least stating it outright. Perhaps you can help me with solving this dilemma. I am working on a revision to deal with this and I will come back to you with it. I think they just don't want the message that one range fits all, it's patient specific. (Doc. 317-1 p. 28.) The emails also reveal the importance of keeping the debated issue confidential. Dr. Clemens October 24, 2012 email to Prof Lehr (above) closes with a statement written in German, roughly translated as follows: I think—“the banana is still shuttered.” Please treat this confidential because Jeff currently interacts with Paul Reilly directly—and I do not know if they know this is actually on file. (Doc. 317-1 p. 33.) Prof. Lehr subsequently responded to Dr. Clemens' request for confidentiality as follows: I will keep it absolutely confidential! I'm personally very disappointed about the exposure-response manuscript. I have put a LOT of effort and time into the analysis. But I don't like the way how the manuscript is written and the message conveyed. I'm working again on a revision of the document and I hope that Paul will consider them. It is the last time, that I agree to put people as first author who were not involved in data analysis. Let's try to get this manuscript in a shape that everybody is happy. Maybe we need a TC (Jeff, Paul, Andreas, Thorsten) to discuss open issues. (Doc. 317-1 p. 34.) In addition, the emails exchanged during this time period demonstrate that the exposure paper and Dr. Lehr's controversial conclusions regarding an optimal dosing range for Pradaxa were being considered and discussed in the highest levels of the company and with the defendants' legal team. For example, consider the following emails: December 19, 2011 email from Dr. Janet Schnee to Dr. Andreas Clemens I noticed this email only this evening, but have now forwarded [Dr. Lehr's draft exposure paper] to the U.S. product lawyer for an opinion. (Doc. 317-1 p. 24.) June 4, 2012 email from Dr. Paul Reilly Exposure response is definitely on the OC radar and I have been heavily pressed to revise and submit the manuscript. It has been “on hold” for almost 6 months. I had to wait several weeks for some analyses from Thorsten, at his request. (Doc. 317-1 p. 25.) July 16, 2012 email from Dr. Lehr to Paul Reilly I met Jeff last Thursday. We discussed the ER [exposure paper] analysis together with management. As management liked it (and also Jeff seemed to like it), I believe we have some tailwind. Maybe you can meet with Jeff and see how to move forward. (Doc. 317-1 p. 26.) Considering the material pertaining to Prof. Lehr, including the email excerpts noted above and those not excerpted for confidentiality purposes but which the Court was able to read in the motions filed under seal, it is evident that Dr. Lehr was a prominent scientist at BII that played a vital role in researching Pradaxa. The defendants' management, legal team, and other top-scientists were familiar with Prof. Lehr's work and communicated with him regarding the same. The Court is stunned that Prof. Lehr was not identified by the defendants as a custodian with potentially relevant knowledge about Pradaxa. Further, given the above, it is evident that the defendants knew that Prof. Lehr's custodial file contained information relevant to this litigation in September 2012 when Prof. Lehr left his employ with BII. The emails also may lead a reasonable person to infer a motive for the defendant to abstain from placing a litigation hold on his materials, including the early versions of the exposure paper. The entire debate is relevant, or at least conceivably relevant, to this litigation and without question any documents, no matter who generated them, should have been the object of the litigation hold. *6 3. The Duty to Preserve is not Defined by What has or has not Been Requested by Opposing Counsel The second possible interpretation of BII's statement regarding why it chose not to preserve Dr. Lehr's custodial file is that BII is blaming the PSC for failing to identify Dr. Lehr as a custodian. In other words, a party only has a duty to preserve relevant evidence that has actually been requested by the opposing party. This position is nonsense. The very purpose of the duty to preserve, is to protect potentially relevant material so it is available for production when and if the opposing party requests that material. Furthermore, the defendant, not the plaintiff, is in the best position to identify persons such as Dr. Lehr. 4. Final Points Regarding the Defendants' Supplemental Response During oral argument, the PSC showed the Court draft version number 5 of the exposure paper. The PSC raised questions regarding whether draft versions 1-4 had been destroyed. In their supplemental response, the defendants contend that their productions have included seven earlier distinct drafts of the exposure paper (presumably from sources other than Prof. Lehr's custodial file), dating back to January 2011 (Doc. 317 p. 2). This argument misses the point. The defendants do not get to pick and choose which evidence they want to produce from which sources. At issue here are the missing documents and material contained in Dr. Lehr's custodial file. The question is, of the draft versions stored on Dr. Lehr's work stations, what was lost when the defendants failed to preserve Dr. Lehr's custodial file. The defendants also argue that because their preservation obligation only attached in February of 2012, they were under no duty to produce documents created prior to February of 2012 (Doc. 317 p. 2). This contention distorts the nature of the duty to preserve. The fact that the defendant's preservation obligation did not attach until February of 2012 (or, at the latest, April of 2012 for BII), does not mean that the defendants are entitled to destroy documents created prior to that date. It means that as of February 2012, the defendants have a duty to preserve any documents in the defendants' control—even those created before February 2012—that are potentially relevant to this litigation and destruction occurring after February 2012 is a violation of that duty. Finally, the defendants contend that because they have produced discovery from other sources that reveals the internal dispute over the exposure paper and over issues relating to therapeutic range, the failure to preserve Prof. Lehr's custodial file must be innocent (Doc. 317 pp. 3-4). In light of all the other discovery abuses that have been discussed herein, this argument does not win the day. One does not know what annotations are or were contained on the personal versions of Dr. Lehr or what statements he made in his “share room” space about the controversy that was brewing. Plaintiffs are entitled to discovery on such matters for interrogation or cross examination purposes. (Footnote omitted; redaction in original.) MDL CMO 50 at 19-28. The court went on to find that “BII has specifically not applied the hold to Dr. Lehr and now failed to produce certain of his 'files.' To fail to do so was in violation of the Court's case management orders and in bad faith.” Id. at 44. *7 The court ordered the following with respect to Dr. Lehr's files: The Court directs BII to produce all complete “files” of Professor Lehr within 7 days. If that proves impossible because they have been destroyed due to the fact that he was not subject to the litigation hold, defendant shall so certify to the Court. Once the Court, knows for certain what defendant's response to this order is in this regard, a further order will issue, allowing more time with possible conditions, or an order assessing sanctions pursuant to [Fed.R.Civ.P.] 37 or the Court's inherent authority, if appropriate. (Footnote omitted.) Id. at 45-46. In accordance with the court's instruction, BII submitted an affidavit to the court, the contents of which the court recited in part, in MDL Case Management Order 50-1 (MDL CMO 50-0,[6] as follows: Prof. Lehr's email account—the account was maintained after he left the company. Thus, Prof. Lehr's email as it existed when he left the Company was available for collection review, and production. BII produced over 4,000 responsive emails on November 7, 2013. The responsive emails produced by BII dated back to the end of January 2009, when Prof. Lehr began working on Pradaxa. Prof. Lehr's “user share”—On December 13, 2013, in response to further inquiries, BII advised counsel that Prof. Lehr's user share was maintained after he left BII. The user share has been collected and contains documents dating back to December 1998. BII is now in the process of producing three responsive documents located in Prof. Lehr's user share. Notably, in an affidavit previously submitted to the Court, BII stated that “Prof. Lehr's workstation, user share, and paper documents are not available to be collected. The only part of Prof. Lehr's custodial file available for collection is his e-mails.” (Doc. 302-6 114) (emphasis added). In other words, the affidavit previously submitted to the Court contained inaccurate information with regard to Prof Lehr's user file. Further, only now, after an inaccurate affidavit was provided to the Court and after issuance of CMO 50, does BII make “further inquiries” to determine that the user share is in fact available for production. Prof Lehr turned in his desktop, laptop and blackberry phone when he left BII. BII did not maintain Prof Lehr's desktop, laptop or blackberry phone. As a result, they are no longer available for collection and cannot be produced. (Emphasis in original.) Id. at 2-3. In response, the court stated the following: It is now evident that BII cannot comply with this Court's order to produce all complete files of Prof Lehr. Accordingly, and in light of the Court's findings in CMO 50, the Court ORDERS as follows: At the close of Bellwether Discovery, the Court will consider imposing sanctions, related to the Prof Lehr production, against BII under Federal Rule of Civil Procedure 37 for failure to comply with this Court's discovery orders, including BII's inability to produce the complete files of Prof Lehr as ordered in CMO 50. The Court will also consider imposing sanctions related to the Prof Lehr production under its inherent authority. *8 The sanctions specifically being considered by the Court in relation to the Prof Lehr production are (1) an adverse inference jury instruction; (2) the striking of certain affirmative defenses; (3) otherwise precluding BII from making certain arguments at trial; and/or (4) deeming certain facts admitted at trial. These sanctions, if imposed by the Court, will apply to any actions pending before this Court at the time the sanctions are imposed. The Court notes the Seventh Circuit has held a finding of bad faith is a prerequisite to the imposition of an adverse inference jury instruction (sometimes referred to as the “spoliation inference” or “spoliation sanction”) ... Further, in the adverse inference context, the Seventh Circuit has adopted a specialized definition of the term “bad faith.” According to Seventh Circuit authority, when an adverse inference is being considered by the Court, “bad faith” is defined as “destruction for the purpose of hiding adverse information.” ... For the reasons discussed in CMO 50, the Court finds the plaintiffs have presented sufficient evidence to establish BII destroyed or failed to preserve Dr. Lehr's laptop, desktop, and blackberry, in bad faith, for the purpose of hiding adverse information. * * * As noted above, BII's [sic] is unable to comply with this Court's directive to provide Prof Lehr's complete custodial file. The Court finds fault in BII's inability to comply with this discovery order. As described in CMO 50, with respect to Prof Lehr's custodial file, BII acted unreasonably, negligently, willfully, and in bad faith. In light of the above, the Court will consider imposing sanctions, at the close of Bellwether Discovery, for the discovery violations related to Prof. Lehr's custodial file. Prior to imposing any of the sanctions described herein, the Court will require the plaintiffs to make a particularized showing of prejudice relating to the Prof Lehr production. Accordingly, in conjunction with the scheduling for motions in limine, the plaintiffs shall submit briefing to the Court demonstrating the nature and scope of prejudice resulting from BII's discovery violations in relation to the Prof Lehr production. The Court will then determine what, if any, sanctions are warranted in relation to the Prof. Lehr production. (Citations omitted; footnotes omitted.) Id. at 3-7. Meanwhile, one of the sanctions imposed in MDL CMO 50 was the requirement that defendants produce foreign employees for deposition in the United States. The defendants petitioned the United States Court of Appeals for the Seventh Circuit for a writ of mandamus to vacate such sanction, which the Seventh Circuit did. In re Petition of Boehringer Ingelheim Pharm., Inc., & Boehringer Ingelheim Int'l GmbH, in Pradaxa (Dabigatran Etexilate) Prod. Liab. Litig., 745 F.3d 216 (7th Cir. 2014). Although the Court rescinded that particular sanction, it did not provide appellate review of the balance of MDL CMO 50, stating that mandamus is available in the discovery order context only in exceptional cases. Id. Thus, plaintiff's repeated assertion that defendants “appealed” from MDL CMO 50, which plaintiff contends was “affirmed,” is simply incorrect. There was no appeal from the balance of MDL CMO 50 because the MDL proceeding was resolved in May 2014 by way of a master settlement agreement prior to trial and the entry of any final judgment. *9 Plaintiff nonetheless seeks to have the benefit of Judge Herndon's findings regarding defendants' failure to preserve Dr. Lehr's complete custodial file. In this regard, plaintiff contends that Judge Herndon already made the equivalent findings that a Connecticut jury would be required to find under Beers v. Bayliner Marine Corp., 236 Conn. 769 (1996), in order to draw an adverse inference. In Beers, our Supreme Court “adopt[ed] the rule of the majority of the jurisdictions that have addressed the issue [of spoliation of evidence] in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” Id. at 775 (citing cases). The Court specifically held “that an adverse inference may be drawn against a party who has destroyed evidence only if the trier of fact is satisfied that the party who seeks the adverse inference has proven the following. First, the spoliation must have been intentional ... By this, we do not mean that there must have been an intent to perpetrate a fraud by the party or his agent who destroyed the evidence but, rather, that the evidence had been disposed of intentionally and not merely destroyed inadvertently ... Second, the destroyed evidence must be relevant to the issue or matter for which the party seeks the inference. For example, the spoliation of a machine may raise an adverse inference with respect to a claim that that particular machine was defective, but such an inference may not be drawn with respect to a claim based upon design defect when the destruction would not hinder the defense ... Third, the party who seeks the inference must have acted with due diligence with respect to the spoliated evidence. For example, the spoliator must be on notice that the evidence should be preserved ...” (Citations omitted; footnote omitted; italics added.) Id. at 777-78. Analyzing the three Beers factors against Judge Herndon's order in MDL CMO 50, the court concludes that Judge Herndon's findings satisfy the Beers test as a matter of law. First, Judge Herndon found that the spoliation with regard to Dr. Lehr's custodial file was intentional (i.e., it was not merely destroyed inadvertently). See, e.g., MDL CMO 50 at 44 (“BII has specifically not applied the hold to Dr. Lehr and now failed to produce certain of his 'files.' To fail to do so was in violation of the Court's case management orders and in bad faith”). Second, Judge Herndon found that, with respect to “an internal debate over whether a scientific paper being drafted by Prof. Lehr (the 'exposure paper') should include Prof Lehr's conclusions regarding Pradaxa's therapeutic range,” “[i]n the exposure paper, Prof Lehr (and his co-authors) concluded, in the early versions of the paper, that both safety and efficacy of dabigatran are related to plasma concentrations and conclude that there is a therapeutic range for Pradaxa and further specify what that range is ... These emails reveal [that] Dr. Lehr's desire to publish a paper that included a therapeutic range for Pradaxa was highly controversial.” The issue of plasma concentrations and therapeutic range will play a central role in the present case. Plaintiff was entitled to engage in discovery into such matters, for direct and cross examination purposes. Accordingly, the second factor of Beers (i.e., “the destroyed evidence must be relevant to the issue or matter for which the party seeks the inference”) is readily satisfied. Third, with respect to the final factor concerning due diligence (i.e., “the spoliator must be on notice that the evidence should be preserved”), Judge Herndon found that the defendants were on notice that Dr. Lehr's files should have been preserved; in fact, he was “stunned” that Dr. Lehr was not identified as a custodian with potentially relevant evidence. Judge Herndon's findings regarding notice are ample so as to deem the third factor of Beers satisfied as a matter of law. BI contends that plaintiff must demonstrate specific prejudice resulting from the spoliation. This argument attempts to place too heavy a burden on the plaintiff. Simply stated, spoliation deprives a party of “knowing what they don't know.” BI does not cite any authority—and the court is not aware of any—to support the proposition that the party requesting a spoliation charge must prove the exact manner in which the spoliated evidence would have supported his or her case or be able to identify exactly which documents were not produced as a result of spoliation. Instead, a party seeking an adverse inference based on spoliation must prove the Beers factors. In the present case, the court deems plaintiff's burden to have been satisfied, as a matter of law, by virtue of Judge Herndon's findings in MDL CMO 50. BI claims that plaintiff has not demonstrated why MDL CMO 50 should have any bearing on this case. Plaintiff argues, in contrast, that pursuant to Connecticut Case Management Order 10 dated July 23, 2015 (CT CMO 10),[7] all discovery propounded and completed in the MDL is deemed propounded and responded to for purposes of the CPL docket (see footnote 1 of this opinion). Here, CT CMO 10 provides in relevant part: *10 This Order, agreed to and entered after negotiations between Plaintiff's Counsel and Defendants' Counsel, relates to the production and preservation of documents and things in the Defendants' possession, care, custody or control. The Court is entering this order after discussion between the parties and with the understanding that (i.) it will apply to all current and future cases filed in this Consolidated Pradaxa Docket, and (ii.) any new plaintiffs and their counsel of record who file Connecticut Pradaxa Actions after the date of this CMO shall be bound by the terms of this CMO and Amended CMO 1 (“Confidentiality Order”) upon being served with a copy of this CMO and Amended CMO 1. Defendants may terminate their production and preservation obligations under this CMO and Plaintiffs shall have an opportunity to respond to any such motion. It is hereby ORDERED as follows: 1. The Defendants shall produce to Plaintiff any and all documents and/or things that they produced to the Plaintiff Steering Committee (“MDL PSC”) in federal court litigation styled IN RE PRADAXA (DABIGATRAN ETEXILATE) PRODUCT LIABILITY LITIGATION MDL No. 2385 in the United States District Court for the Southern District of Illinois, East St. Louis Division, and assigned to the Honorable David R. Herndon, Chief Judge (“MDL 2385”) as follows: a. Defendants shall work with Plaintiff to establish an electronic platform through which Plaintiff's Counsel can and may access the Relativity Database containing all documents as previously produced to the MDL PSC; * * * f. Defendants shall provide Plaintiff with copies of all discovery requests and deposition notices propounded by the MDL PSC, together with Defendants['] responses or objections thereto, within forty-five (45) days of the date of this Order, and same shall be deem[ed] served in this Court for purposes of the parties' respective rights and obligations with regard thereto. g. Further discovery shall not be propounded by Plaintiff without the parties engaging in a reasonable meet and confer process designed to address all parties' concerns regarding the discovery in question and objections thereto, if any, including in light of the productions already being provided. Should the meet and confer process fail to resolve any objection to the prospective discovery, parties may seek relief from the Court once such discovery has been propounded. * * * CT CMO 10 at 1-4. Plaintiff also relies on Connecticut Case Management Order Nos. 1, 2, 4, 5, and 6, each of which contains language emphasizing that the particular order seeks to promote coordination between the CPL docket and the MDL proceeding. Plaintiff further relies on § 9 of MDL CMO 6 dated October 3, 2012, entitled “Unified Case Management Plan,” which provides in relevant part: 9. Cooperation with State Courts This Order is being entered in reliance on representations of Lead Counsel for the Plaintiffs and Defendants and counsel for plaintiffs in state court actions currently pending in ... Connecticut ... that the parties in those state court actions, including those that may be filed after the date of the entry of this order: (a) intend to benefit from the efforts at coordination and cooperation set forth in this and other Orders entered by this Court; ... and (c) do not intend to engage in duplicative discovery ... MDL CMO 6 (Herndon, C.J.). Distilled to its essence, plaintiff's argument is that, for purposes of general liability discovery, Connecticut plaintiffs “stand in no different position than the MDL Plaintiffs did at the time Judge Herndon issued the sanction orders, suffering the same prejudice and burdens that resulted from Defendants' 'bad faith' and 'egregious' repeated and substantial violations of the MDL Court's discovery orders.” (#258.00.) The court agrees. *11 The parties agreed to be bound by, and not duplicate, the discovery process that had occurred in the MDL. It necessarily follows that an offending party who failed to identify a custodian of potentially relevant evidence and who failed to preserve such evidence in the underlying proceeding should also be bound by any judicial findings by the underlying court relating to such discovery failures. The contention that Judge Herndon's discovery-related findings should be ignored altogether smacks of unfairness under the very unusual circumstances of the discovery process in the CPL docket. That is, defendants attempt to use the parties' agreement to rely on and not duplicate the MDL discovery as a shield against any attack on the discovery failures found by the MDL court. Moreover, any relitigation of the spoliation issues relating to Dr. Lehr's custodial file would not only offend principles of judicial economy, would create a trial within a trial, would risk one or more trial counsel being called as witnesses, and would create possible, if not inevitable, confusion with the jury, who would be presented with testimony and other evidence (e.g., court orders, among other things) relating to the MDL. In sum, the court concludes that, as a matter of law, the Beers factors have been satisfied with regard to Dr. Lehr's custodial file. Plaintiffs request for a spoliation charge with respect to Dr. Lehr is granted.[8] See Practice Book § 13-14(d). C. Dr. Martina Bruckmann, Dr. Jorge Caria, and Ingrid Schulz Plaintiff also seeks a spoliation charge based on her claim that BI's litigation holds failed to preserve emails among “three key Boehringer scientists,” namely, Dr. Martina Bruckmann, Dr. Jorge Caria, and Ingrid Schulz, “for an extended period of time of three years.” The court denies this request. In support of her request, plaintiff relies on transcript excerpts from the deposition of Dr. Bruckmann. Dr. Bruckmann was asked about a failure to preserve her emails; she responded that she had come to learn that “there had been an IT error,” referring to BI's information technology department, and that for a period of time, her incoming and outgoing emails were not “systematically archived by the IT department.” In addition to such deposition testimony, plaintiff relies on a letter exchange with defense counsel, Eric Hudson, Esq. (See Exhibit B to plaintiff's request.) One of Attorney Hudson's letters describes “a transition between two different legal hold systems,” which resulted in the “inadvertent” loss of certain emails of Bruckmann and Schulz that “were being preserved by the prior legal hold system.” Plaintiff argues that the court should view this evidence against the backdrop of defendants' discovery conduct described in MDL CMO 50. The court has carefully examined the evidence on which plaintiff relies with specific regard to the litigation hold failure vis-à-vis Bruckmann and Schulz. Such evidence suggests that any loss of electronically stored information of these individuals resulted from an imperfect transition from one litigation hold system to another. There is no specific evidence of any bad faith operation or implementation of such system, particularly where it appears the information was preserved under the former system but not under the latter. Accordingly, the court concludes that, with regard to Bruckmann and Schulz, plaintiff has not met her burden under Practice Book § 13-14(d) to show “intentional actions designed to avoid known preservation obligations.” See Practice Book § 13-14(d) (“The failure to comply as described in this section shall be excused and the judicial authority may not impose sanctions on a party for failure to provide information, including electronically stored information, lost as the result of the routine, good-faith operation of a system or process in the absence of a showing of intentional actions designed to avoid known preservation obligations”). *12 With regard to Dr. Caria, who receives little mention in plaintiff's request, the court has carefully reviewed the exchange of letters among counsel (attached as Exhibit B to plaintiff's request) and concludes that there is an insufficient record to permit the court to make any of the requisite factual findings under Practice Book § 13-14(d) and/or Beers. II. CONCLUSION For the foregoing reasons, plaintiffs request for a spoliation charge (#258.00) is granted in part and denied in part. Plaintiff's request is granted to the extent it seeks a spoliation charge relating to Dr. Lehr's custodial file, as discussed herein. Plaintiff's request is otherwise denied. Although plaintiff requests the particular charge on pages 1-2 of her request (#258.00), the court intends to redraft the proposed charge and will hear from the parties with regard thereto. Footnotes [1] The instant action was designated for the first bellwether trial in the Connecticut Consolidated Pradaxa Litigation (CPL) docket, which currently comprises over 2,000 individual cases. [2] Accordingly, the court addresses only the first and third categories. [3] The court will refer herein to the federal court multidistrict litigation as “the MDL proceeding.” [4] The order is also available on Westlaw. In re Pradaxa (Dabigatran Etexilate) Prod. Liab. Litig., No. 3:12-MD-02385-DRH-SCW, 2013 WL 6486921 (S.D.Ill. Dec. 9, 2013), order rescinded in part sub nom. In re Petition of Boehringer Ingelheim Pharm., Inc., & Boehringer Ingelheim Int'l GmbH, in Pradaxa (Dabigatran Etexilate) Prod. Liab. Litig., 745 F.3d 216 (7th Cir. 2014). [5] The court refers the reader to Judge Herndon's 51-page order for a full recitation of his findings. [6] MDL CMO 50-1 is attached as Exhibit A to plaintiff's February 13, 2018 sur-reply (#290.00). [7] For ease of administration, case management orders issued for purposes of the CPL docket are entered in the master file, In re Connecticut Pradaxa Litigation, No. HHD-CV13-5036974S(X03), judicial district of Hartford, complex litigation docket. [8] The court notes that any adverse inference permitted by a spoliation charge does not “supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced.” (Internal quotation marks omitted.) Beers, 236 Conn. at 769. Accordingly, the court's order herein is subject to the plaintiff establishing a prima facie case.