Napolitano v. Synthes, Inc
Filing
196
ORDER granting in part and denying in part 146 Motion to Determine Sufficiency of Synthes' Responses to Requests for Admissions; granting in part and denying in part 147 Motion to Compel. Signed by Judge Holly B. Fitzsimmons on 1/29/14. (Esposito, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHRISTINE NAPOLITANO
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v.
SYNTHES USA, LLC
CIV. NO. 3:09CV828 (TLM)
DISCOVERY RULING
This is a product liability case involving a medical
implant device called a locking reconstruction plate (“LRP”),
designed for use on the human jaw.1 [Amend. Compl. Doc. #188].
Plaintiff alleges that defendant negligently and recklessly
manufactured and sold the plate; failed to provide adequate
warnings/instructions; and breached an implied warranty of
merchantability and express warranties. Conn. Gen. Stat. §52572m, et seq. [Doc. #188].
As a result of a fractured plate,
plaintiff alleges she suffered an exacerbation of her preexisting mandibular condition, suffered and continues to suffer
emotional distress, pain and suffering, and has incurred medical
and hospital expenses for the replacement of this defective
plate and the consequential medical care arising therefrom.
[Doc. #188 at ¶¶7-10].
1 Plaintiff’s
Second Motion for Leave to Amend the Complaint was
granted on January 27, 2014. [Doc. ##188, 194].
1
The plate at issue was sold by Synthes on August 4, 2003;
implanted in Ms. Napolitano on May 1, 2006; and fractured
approximately six weeks later. [Doc. #188 at ¶3]. On July 27,
2007, plaintiff underwent surgery to replace it. Id. at ¶4.
Pursuant to the Court’s order dated October 29, 2013, [doc.
#131], plaintiff filed a Motion to Determine Sufficiency of
Synthes’ Responses to Requests for Admissions [Doc. #146] and
Motion to Compel Production [Doc. #147], also referred to as
omnibus discovery motions, to wrap-up all outstanding discovery
issues.
Oral argument was held on January 13, 2014.
Motion to Determine Sufficiency of Synthes’ Responses
to Requests for Admissions [Doc. #146]
Pending are plaintiff’s Requests for Admission (“RFA”),
dated April 30, 2012 and October 2, 2013. Defendant served its
responses on May 10, 2013, and January 9, 2014. [Doc. #161]. The
matter was briefed and is ripe for decision. [Doc. #146, 161].
Requests for Admission dated April 30, 2012
Outstanding are RFAs Nos. 71, 74, 77, 81, 134, 145, 149,
156-58, 168, 170, 198, 205-06, 214-15, 219-20, 224-25, 230-32,
236-38, 242-44, 246, 248, 251, 253, 261, 264, 266, 269, and 27075.
At oral argument, plaintiff withdrew RFA Nos. 106, 139, and
169. Defendant “acknowledges that it erroneously denied that the
2
exhibit document described in admission request No. 121 could be
imputed to Synthes, and will serve an amended response stating
that Synthes, through Mr. Simpson, a former Synthes employee,
had knowledge of the contents of the document.” [Doc. #161 at
2].
Imputed Corporate Knowledge from Synthes Documents
Most of the RFAs at issue relate to requests asking
defendant to admit or deny imputed corporate knowledge from
Synthes documents.
These are RFAs Nos. 71, 74, 77, 81, 134,
145, 156-158, 168, 170, 198, 205-06, 214-15, 219-20, 224-25,
230-32, 236-38, 242-244, 248-53, 261, 266.
-Documents Where No Synthes Employee is Identified
Defendant states that many of the RFAs relate to
documentary exhibits for which no Synthes employee is identified
as an author or recipient.
These are RFAs Nos. 71, 74, 77, 81,
134, 145, 156-58, 168, 170, 198, 248, 253, 261, and 266.
“Consequently, it impossible to tell which Synthes employee(s)
had knowledge of the documents, and whether such employee(s) had
power to bind Synthes or had a duty to give information to
Synthes. All but one of the Synthes employees who were
identified in exhibits to admission requests as recipients of
3
documents have been deposed, but none were questioned regarding
the scope of their authority with respect to such documents. ”
[Doc. #161 at 2]. The documents referenced in these RFAs were
appended as defendant’s Ex. 1 to its opposition to plaintiff’s
motion and were reviewed by the Court. [Doc. #161, Ex. 1].
Plaintiff contends that “Synthes’ admission that its
employees knew of these documents, while denying that such
knowledge may be imputable to Synthes is disingenuous
. . . in
particular, each [response] stated a conclusion but did not
detail which employee knew, or what their job responsibilities
were, and Synthes does not explain why any particular employee’s
notice or knowledge is not within the scope of his employment or
should not be imputed to it.” [Doc. #146 at 6].
The Court is
perplexed how Synthes could provide this information in a
response to these RFAs when none of the documents identify an
author or recipient. Accordingly, the parts of the response
denying imputation of knowledge to Synthes are sufficient as to
RFAs Nos. 71, 74, 77, 81, 134, 145, 156-58, 168, 170, 198, 24748, 253, 261, and 266.
-Documents Where a Synthes Employee is Identified
RFP Nos.
205-06 (Stephen Bresina and Mark Michels); 214-15
(David Wheatley and Bryan Griffiths); 219-20 (David Wheatley and
Bryan Griffiths); 224-25 (“ Acknowledgment Synthes Product
4
Development Team B. Griffiths, Maxillofacial PD, S Lawrence,
Mechanical Testing and D. Wheatley, Mechanical Testing”); 230-32
(Ron Baulista, Charles Beale, Cal Stewart, Ross Hamel); 236-38
(Ron Baulista, Charles Beale, Darrin M. Chastain, Drew
DiStefano, Ross Hamel); and 242-44 (Darrin M. Chastain, Cal
Stewart) reference documents which identify one or more Synthes
employees.
Defendant states that none of the employees deposed by
plaintiff were queried on their scope of employment and their
ability to bind the corporation and this information is not
properly provided in a denial of an RFA under the Rule.2
Defendant contends that most of the documents relate back to the
1990s, and some of the employees are no longer employed by
Synthes. Plaintiff has made no showing that these individuals
are current Synthes employees or that the information is within
defendant’s control. T. Rowe Price Small-Cap Fund, Inc. v.
Oppenehimer & Co., Inc., 174 F.R.D. 38, 43 (S.D.N.Y. 1997)
2
Plaintiff seeks an order that the Court deem the RFAs admitted
or Synthes should be ordered to “admit that the knowledge of the
employees, identified in the exhibits cited to in the RFA, is
imputed to Synthes”; or “(in those instance where Synthes
continues to deny imputation of its employees’ knowledge) to
identify the employee that had the knowledge, the scope of this
employee’s responsibilities, whether the employee acquired the
knowledge within the scope of his responsibilities, and why
Synthes claims this knowledge is not imputed.” [Doc. #146 at 78].
5
(“Generally, a ‘reasonable inquiry’ is limited to review and
inquiry of those persons and documents that are within the
responding party’s control.”).
“While the basic purpose of discovery is to elicit facts
and information and to obtain production of documents, Rule 36
was not designed for this purpose.
Instead, requests for
admission are used to establish admission of facts about which
there is no real dispute.”
Practice, §36.02[1]
7 James Wm. Moore, Moore’s Federal
at 36-5 (3d ed. 2012); T. Rowe Price Small-
Cap Fund, Inc., 174 F.R.D. at 42 (“Rule 36 is not a discovery
device.”).
If the responding party intends to deny a portion of
a requested admission, it must so state, and must “specify so
much of it as is true and qualify or deny the remainder.” Fed.
R. Civ. P. 36(a).
Here, defendant denies that “such knowledge is imputable to
Synthes,” rather than stating that after a ‘reasonable inquiry’
it lacks information necessary to admit or deny the request.
Synthes may not give lack of information or knowledge as a
reason for failure to admit or deny unless it has made such
inquiry. T. Rowe Price Small-Cap Fund, Inc., 174 F.R.D. at 43
(citations omitted);
Al-Jundi v. Rockefeller, 91 F.R.D. 590,
594 (W.D.N.Y. 1981)(“Because rule 36 admission requests serve
the highly desirable purpose of eliminating the need for proof
6
of issues upon trial, there is a strong disincentive to finding
an undue burden [in responding] where the responding party can
make the necessary inquiries without extraordinary expense or
effort . . . .”).
“[A]s set forth in Rule 36, the responding
party need only make ‘reasonable’ efforts to secure information
that is ‘readily obtainable.’ Generally, a ‘reasonable inquiry’
is limited to review and inquiry of those persons and documents
that are within the responding party’s control.”
T. Rowe Price
Small-Cap Fund, Inc., 174 F.R.D. at 43 (citations omitted).
“This is more than simply a technical pleading requirement.
Rather it reflects the obligation of a party to make a
reasonable effort to obtain information needed to respond to the
request.”
Beberaggi v. New York City Transit Authority, No. 93
Civ. 1737 (SWK), 1994 WL 18556, at *5 (S.D.N.Y. Jan. 19,
1994)(citation omitted). “Furthermore, even if defendant had
only partial information, it was required to respond to the
extent it could.” Id. (citations omitted). If the former
employees were deposed, “defendant must consider their
deposition testimony in responding to the requests.” T. Rowe
Price Small-Cap Fund, Inc., 174 F.R.D. at 43 (citations
omitted); Al-Jundi, 91 F.R.D. at 594 (“The proper course is to
make reasonable efforts to obtain the requested information and,
in accord with the plain language of rule 36, respond that such
inquiry has been made and that the information readily
7
obtainable is insufficient to enable admission or denial.”).
On
the other hand, the Court cannot accept plaintiff’s position
that defendant must admit as true matters that may be outside
defendant’s knowledge, and as to which there may be other
evidence or no evidence at all.
“It must be observed that Rule
36(a)(4) requires responses to ‘set forth in detail the reason
why the answering party cannot truthfully admit or deny the
matter.’ Hence, if [Synthes] conclude[s] as to any admission
request received already or in the future in this litigation
that the burden of responding to the request is greater than
[it] should reasonably have to bear, the answer must state
specifically what efforts have been made or why reasonable
efforts would be unavailing to obtain the requisite knowledge.”
Al-Jundi, 91 F.R.D. at 594.
Accordingly, keeping in mind the Court’s ruling, defendant
will amend the portion of its responses to RFP Nos. 205-06
(Stephen Bresina and Mark Michels); 214-15 (David Wheatley and
Bryan Griffiths); 219-20 (David Wheatley and Bryan Griffiths);
224-25 (“ Acknowledgment Synthes Product Development Team B.
Griffiths, Maxillofacial PD, S. Lawrence, Mechanical Testing and
D. Wheatley, Mechanical Testing”); 230-32 (Ron Baulista, Charles
Beale, Cal Stewart, Ross Hamel); 236-38 (Ron Baulista, Charles
Beale, Darrin M. Chastain, Drew DiStefano, Ross Hamel); and 242-
8
44 (Darrin M. Chastain, Cal Stewart), which deny “that such
knowledge is imputable to Synthes.”
Defendant’s responses are
due in twenty-one days.
Requests for Admission Nos. 106, 139, 149, 169, 246,
251, 264, 269, 270, and 272-75
Plaintiff argues defendant’s responses to RFA Nos. 106,
139, 149, 169, 246, 251, 264, 269, 270, and 272-75 are
insufficient.
Keeping in mind the Court’s ruling above, defendant will
make a “reasonable inquiry”
and state specifically what efforts
have been made or why reasonable efforts would be unavailing to
obtain the requisite knowledge in amended responses to RFA Nos.
106, 139, 149, 169, 246, 251 and 264.
Where a RFA references an
exhibit that was not prepared by a Synthes employee, defendant
should identify the document (e.g. prepared by other orthopedic
device manufacturer), in its response. For example, the Court
notes that RFA No. 106 involves meeting notes with a footer, “M.
Michels. ” A reasonable inquiry should be made regarding the
three pages at issue and described in an updated response with
specificity.
Where a RFA references an exhibit that is a
handwritten note or contains handwritten notes, defendant will
9
state what reasonable efforts were made to identify the
person(s) who authored the writing or made the notation.
Keeping in mind the Court’s ruling above, defendant will
admit or deny RFP Nos. 269, 271, 274 without qualification,
unless the information readily obtainable is insufficient to
enable admission or denial.
Plaintiff’s objections to defendant’s response to RFP. Nos.
270, 272 and 273 are OVERRULED.
Regarding RFA No. 275, plaintiff failed to include all of
defendant’s response in her motion. [Doc. #146 at 11].3
Nevertheless, the Court agrees that the request is vague and
ambiguous as to “began to market” and “simulated or actual use
testing.” “Requests for Admission should be simple and direct.”
7 James Wm. Moore, Moore’s Federal Practice, §36.10[6], at 36-24
(3d ed. 2012).
If defendant’s omitted response is “Synthes
performed or relied upon appropriate testing for the LRP, and
Admits that Synthes complied with all FDA regulations related to
FMP and QSR regulations” as set forth in defendant’s response to
RFA No. 275: At the time that Synthes began to market the 449
Series Locking Reconstruction Plate, Synthes was not aware of
any simulated or actual use testing that had been performed on
the 449 Series Locking Reconstruction Plate.
3
SYNTHES RESPONSE: Objection. This request is vague and ambiguous
without definition of the term “simulated or actual use of
testing.” Without waiving this objection,”
10
RFA No. 274, then defendant should admit or deny RFA No. 275,
“At the time that Synthes began to market the 449 Series Locking
Reconstruction Plate, Synthes was not aware of any simulated or
actual use testing that had been performed on the 449 Series
Locking Reconstruction Plate,” without qualifying its response.
Second Request for Admission dated October 2, 2013
Defendant’s objections are OVERRULED. Defendant will amend
its response to RFA Nos. 1-3, admitting or denying the RFAs.
Defendant’s amended response is due within twenty one days.
Plaintiff’s request for sanctions and/or leave to conduct
further depositions is DENIED.
Motion to Compel Production [Doc. #147]
Attestation
Defendant states that the
only issue to be determined with
regard to plaintiff’s Second Document Production Request dated
June 22, 2011; Third Document Production Request dated December
8, 2011; and Fourth Document Request dated February 22, 2013 is
whether the supplementation should be sworn under oath.
[Doc.
#160 at 3-4].4
4 The Court notes that defendant’s count of the number of
requests to produce differs from plaintiff’s count. The Court is
11
Synthes states that it has “consistently taken the position
that Rule 34 of the Federal Rules of Civil Procedure does not
require attestation for responses to document production
requests.” [Doc. #160 at 3-4, citing State Farm Mutual
Automobile Ins. Co. v. New Horizon, Inc.,
250 F.R.D. 203, 222
(E.D. Pa 2008) (“unlike Rule 33(b), Rule 34(b) does not require
a party’s response to a document request to be verified by the
party.”) (emphasis provided by defendant)).
While this is
generally true when responsive documents are produced, a
response that all documents have been produced does require
attestation.
“When a party claims that the requested documents
have already been produced, it must indicate that fact under
oath in response to the request.
Nevertheless, if the party
fails to make a clear and specific statement of such compliance
under oath, the court may order it to produce the documents.”
Colon v. Blades, 268 F.R.D. 129, 132-33 (D.P.R. 2010) (citing
Rayman v. Am. Charter Fed. Savings & Loan Ass’n, 148 F.R.D. 647,
651 (D. Neb. 1993);
Vasquez-Fernandez v. Cambridge College,
Inc., 269 F.R.D. 150, 154 (D.P.R. 2010) (“[W]hen a response to a
production for documents is not a production or an objection,
but an answer, the party must answer under oath.”); Rayman v.
Am. Charter Fed. Savings & Loan Ass’n, 148 F.R.D. 647, 651 (D.
guided by the date of the requests.
12
Neb. 1993) (“The [Advisory Committee] comment to [Rule 34] above
indicates that in such a situation [where the defendant
responded by stating that the documents had been produced], the
proper procedure for making the response is mandated by Rule 33,
which requires responses by the party under oath.”)); Fed. R.
Civ. P. 34 (Advisory Committee Notes, 1970 Amend. Sub.(b) (“The
procedure provided in Rule 34 is essentially the same as that in
Rule 33 as amended . . . .”).
Defendant’s objection is OVERRULED. It is hereby ORDERED
that Synthes’ responses to RFP, if the response is that all
document have been produced, be filed under oath.
Reported Resolved
Plaintiff reported the following requests will be resolved
by the Requests for Admission dated January 14, 2014, if
admitted or denied by defendant.5
5
Defendant’s response is due
As to plaintiff’s Supplemental Request for Production dated
June 22, 2011, Request for Production (“RFP”) No. 40;
Supplemental Interrogatories and Request for Production dated
December 8, 2011, RFP Nos. 1, 3, 4; Supplemental Request for
Production dated February 22, 2012, RFP nos. 2, 3, 6, 8, 10, 13
and 15; and Supplemental Request for Production dated April 19,
2012, RFP Nos. 1-17, 19, 20, 22, 25-27 and 31-33, RFA dated
January 14, 2014, No. 1 asks defendant to admit, “Synthes has
performed a diligent search, including a search of computer
stored data, and queried all appropriate individuals and attests
under oath that all responsive documents within its possession
or control have been produced.” As to Supplemental Request for
Production dated April 19, 2012, RFP Nos. 2, 7, 11, 15, 16, 19
and 25, RFA No. 2 dated January 14, 2014, asks defendant to
13
on or before February 10, 2014.
I.
Plaintiff’s Supplemental Request for Production dated June
22, 2011, Request for Production (“RFP”) No. 40;
II.
Plaintiff’s Supplemental Interrogatories and Request for
Production dated December 8, 2011, RFP Nos. 1, 3, 4;
III.
Plaintiff’s Supplemental Request for Production dated
February 22, 2012, RFP nos. 2, 3, 6, 8, 10, 13 and 15;
IV.
Plaintiff’s Supplemental Request for Production dated April
19, 2012, RFP Nos. 1-17, 19, 20, 22, 25-27 and 31-33 and
Nos. 2, 7, 11, 15, 16, 19 and 25;
V.
Plaintiff’s Supplemental Request for Production dated
November 27, 2012, 1-4, 6, 7, 10-12, 14, 15, 17, 18, 20,
22-26, 28-31, 34, 37, 41, 42, 47 and 57.
admit, “Synthes has undertaken a further review of plaintiff’s
Requests for Production dated 4/19/12 and performed a diligent
search, including a search of computer stored data, and attests
under oath that all responsive documents within its possession
or control have been produced.” As to Supplemental Request for
Production dated November 27, 2012, RFP Nos. 1-4, 6, 7, 10-12,
14, 15, 17, 18, 20, 22-26, 28-31, 34, 37, 41, 42, 47 and 57, RFA
No. 3 dated January 14, 2014, asks defendant to admit, “Synthes
has reviewed plaintiff’s Requests for Production dated November
27, 2012, and has performed a diligent search, including a
search of computer stored data, and queried all appropriate
individuals and attests under oath that all responsive documents
within its possession or control have been produced.”
14
Plaintiff’s Fifth Request for Production dated August 21,
2012, and served on November 27, 2012
Plaintiff’s Fifth Request for Production dated August 21,
2012, was served on November 27, 2012. While the Court is aware
that defendant contends that plaintiff’s undocketed Motion for
Permission to File Additional Request for Production dated
November 27, 2012, [doc. #130-1], means that Synthes was not
properly served with the document request, there is no dispute
that defendant was provided with a copy of the Fifth Request for
Production as early as August 2012 and November 2012. As set
forth below, there can be no dispute that the issue of whether
to permit service of the Fifth Request for Production dated
August 21, 2012, has been part of an ongoing dialogue in several
discovery conferences and significant judicial resources have
been devoted to mediating the parties’ disputes and trying to
work out resolution of this RFP as well as other discovery
issues through meet and confer and intervention by the Court.
Outstanding are RFP Nos. 5, 9, 13, 19, 21, 27, 35, 38, 39,
43, 45, 46, 48-54, 56, and 58-69. [Doc. #147 at V, page 13-49,
Ex E]. The following background is relevant to the determination
of the outstanding requests.6
6 It
is difficult not to conclude from this history that a
tremendous amount of judicial resources has been expended to
mediate the parties’ disputes, imposing considerable expense on
the parties. Discovery has been unnecessarily delayed and
15
On August 21, 2012, plaintiff provided defendant with her
Fifth Request for Production.
Plaintiff’s Fifth Request for Production was served on
defendant on November 27, 2012.
The Fifth Request for Production dated August 21, 2012,
was attached to the parties’ Joint Agenda dated November
27, 2012, along with a Motion for Permission to File
Additional Request for Production on the defendant Synthes
dated November 27, 2012, and a Notice of Service dated
November 27, 2012. A copy of Plaintiff’s Supplemental
Requests for Production dated August 21, 2012, was
attached to the Notice of Service. See Doc. #130 at 1.
Plaintiff’s Motion for Permission to File was never
docketed by her counsel.
Discovery conferences were held on November 29 and
December 10, 2012, to discuss outstanding discovery
disputes, including the issues listed on the parties’
Joint Agenda dated November 27, 2012. [Doc. ##79, 82].
On January 4, 2013, the Court addressed defendant’s
argument that many of the requests contained in the FRPs
dated August 21, 2012 were duplicative of earlier
protracted over matters that could have and should have been
resolvable by counsel through a meet and confer and without
delay.
16
requests.
The Court ruled,
Defendant represented that it provided all
design history and development documents.
Plaintiff will serve an omnibus request for
admissions and ask if defendant has complied
with the requests for production. The Court
is receptive to plaintiff wanting
confirmation that the previous requests for
production have been responded to. However,
the Court is not inclined to permit
duplicative requests which may be a lot of
work for little gain. Any renewal of this
issue will require a showing of good cause.
[Doc. #83 at 4].
February 12, 2013, Email: By email dated
February 12, 2013, and during oral argument on
April 10, 2013, plaintiff withdrew RFP Nos. 8,
16, 32, 33, 40, 44, 55 and 68 in part, as
duplicative of other requests.7 [Doc. #108, Ex.
7
Plaintiff’s counsel stated he reviewed the
Fifth Request for Production dated August 21,
2012, and was “not able to reduce them to an
RFA; however if you believe prior answers to
other RFPs provide a full and accurate response
to one or more of the RFPs then you may state
that and identify which documents previously
produced comply by bate stamp number.” [Doc.
#108, Ex. 1; Doc. #160, Ex. 10]. Regarding
duplicative RFP, plaintiff stated that after
review of the prior RFP, there were some that
were duplicative and would not be pursued
provided that defendant state that its prior
response “fully and accurately answers the
proposed RFP of the 11/2012 set.” This response
from defendant would resolve RFP Nos. 8, 16, 32,
33, 40, and 55. Plaintiff added that if “the
response to #44 of the 11/2012 set is
duplicative of a response to #13 of this same
17
1; Doc. #109 at 70:21-71:7; Doc. #129, n.1; Doc.
#160 at Ex. 10].
On April 8, 2013, the parties submitted a Joint
Agenda to the Court in advance of a status
conference, listing all the pending discovery
motions and outstanding issues.
A status conference was held on April 10, 2013,
on the record. [Doc. ##109. 116]. Agenda item
1(g) addressed the Fifth Request for Production
dated August 21, 2012.8 During the status
conference, plaintiff’s counsel sought leave to
serve the Fifth Request for Production dated
August 21, 2012. He stated that since the last
proposed set then a response stating this is
satisfactory.” Id. Plaintiff withdrew RFP No. 68
(as to the last section only relating to
complaint handling procedures), stating
defendant previously provided a response with
regard to complaint handling procedures in RFP
No. 16 of the June 2011 set. Finally, as to all
the other requests, plaintiff was seeking a
response from defendant as to all other requests
not addressed in this e-mail. Id.
1(g) states, “Plaintiff has reviewed her proposed Requests for
Production dated November 27, 2012 and has identified the few
that she considers duplicative of prior requests and those that
she will withdraw. These have been communicated to the defendant
by email dated February 12, 2013. As to the balance of the
Requests for Production plaintiff has determined that these are
not suitable for a Request for Admission and therefore request
the court’s permission to submit these requests. Defendant
Update (4/8/13): Defendant will continue to object.”
8
18
conference with the Court, he had looked at each
RFP and compared them to prior RFPs to make sure
they were not duplicative or cumulative and was
able to withdraw RFPs Nos. 8, 16, 32, 33, 40,
44, 55, and 68. [Doc. #109, Tr. at 68-70]. With
regard to RFP No. 44, all he needed from
defendant was verification that defendant would
produce the documents “as part of the master
supplemental compliance.”
7].
[Doc. #109 at 71:6-
In support of “good cause” to permit the
Fifth Requests for Production,
plaintiff argued
that the new requests were necessitated by the
corporate representative testimony of Angela
Silvestri (depo. 3/29/12), Mark Michels (depo.
7/12/12), Ted Kompa (Depo. 9/27/12), James
McCracken (Depo. 8/28/12), 9/26/12), Kim Coffey
(Depo. 9/26/12), and James Hern (second review
of Depo. 2/15/11). [Doc. #109 67:4-68:24; 71:972:7]. Plaintiff continued, “if we’re able to
get follow-up along the lines that were
discussed today . . . allowed to submit and
provided with responses to these supplemental
requests for production which, by the way, were
not taken lightly . . . [they] were specific,
19
very specific to documents, . . . that were
mentioned in the deponents’ depositions” . . .
that we are getting to the close of the
discovery process.” Id. at 73:21-74:12.
Defendant argued, based on the Court’s ruling in
July 2012, that plaintiff had the burden of
showing “good cause” for any further requests
for production. Id. at 72:15-73:4. “I simply
object to them, basically under the grounds of
enough is enough, and it’s very burdensome to
respond to these multiple requests, and having
to do another 60 is-would not only be
burdensome, but it’s going to –will take
significantly longer than the normal period of
time that’s allowed by the rules to respond.”
Id. at 72:22-73:4]. Defendant sought leave to
brief its position on the Fifth Request for
Production, “to file a very short response. I
didn’t bring the material I needed to
effectively argue that today.” Id. at 76:1-7. A
briefing schedule was set with the agreement of
counsel.
Id. at 76-77.
In a ruling dated April 29, 2013, the Court
noted that decision on item 1(g) of the parties
20
April Joint Agenda was deferred by agreement.
[Doc. #110 at 4].
On April 23, 2013, “Synthes Memorandum Re: Fifth
Document Production Request” was filed. [Doc.
#108].9 After recounting the discovery produced
by the defendant to date, defendant stated it
“has already produced all documents that could
possibly [be] relevant to plaintiff’s claims,
along with thousands of pages of documents that
are likely irrelevant. Synthes should not have
to bear the internal administrative expense and
external legal expense of responding to an
additional document production request.” [Doc.
#108 at 2-3].
“Simply stated ‘enough is
enough’.” Id. at 2.
Plaintiff filed a response on May 1, 2013. [Doc.
#112]. Plaintiff reiterated that the Fifth
Request for Production dated August 21, 2012,
was based largely on the deposition testimony of
Synthes employees and former employees, which
were conducted between June 26 and September 27,
9 Defendant’s
memorandum set forth the parties’ efforts to raise
this issue during a discovery conference on November 29, 2012,
and during a telephonic discovery conference on December 10,
2012. [Doc. ##79, 82].
21
2012. [Doc. #112 at 2-3]. As to the remaining
RFPs, plaintiff supported her requests with case
law and specified why the requests were
“reasonably calculated to lead to the discovery
of admissible evidence.” Fed. R. Civ. P.
26(b)(1).
Defendant did not file a reply brief.
On October 2, 2013, a status conference was held
to consider, among other things, defendant’s
ongoing objection to plaintiff’s Supplemental
Requests for Production dated August 21, 2012,
which contained sixty-nine requests. [Doc. #108,
Ex. 1; Doc. #120; Doc. #129]. The parties were
directed to resubmit the materials for which the
Court’s consideration had been deferred [Item
1(g) of the parties Joint Agenda for Court
Conference dated April 8, 2013]. Defendant did
not seek leave to file a supplemental brief or
reply to plaintiff’s May 1, 2013, memorandum.
Defendant’s “Motion to Quash Plaintiff’s Fifth
Request for Production,” [doc. #108], was
referred to the undersigned for a decision by
Judge Melancon on October 16, 2013. [Doc. #126].
A Joint Submission RE: Pending Discovery Motion
22
was filed on October 17, 2013, setting forth the
universe of documents the Court needed to
consider to render a decision on defendant’s
objections to the Fifth Request for Production
dated August 21, 2012.
[Doc. #127].
Specifically, the parties stated that the
“matter was fully briefed” and referred the
Court to Synthes’ Memorandum dated April 23,
2013 and plaintiff’s Reply dated May 1, 2013.
[See Doc. #127 at 2-3, citing Doc. #108, 112].
Defendant did not seek leave to file a
supplemental brief or reply to plaintiff’s May
1, 2013, memorandum.
A ruling was filed on October 24, 2013, granting
in part and denying in part defendant’s Motion
to Quash. As noted in the ruling, defendant did
not offer specific objections to the individual
requests. [See Doc. #129]. Rather, Synthes
argued generally that: (1) “Most if not all of
the documents requested could have been included
in previous document production requests;” (2)
“Synthes has presented three 30(b)(6) witnesses
for day-long depositions, two product
development engineers, a sales consultant, two
23
former Synthes employees, and two expert
witnesses;” and (3) “Synthes has responded to
two sets of interrogatories and four document
production requests, is in the process of
responding to a request for admissions
containing 275 requests, and has produced almost
4,000 pages of documents.” [See Doc. #129 at 2,
citing Doc. #108 at 2].
For the reasons stated
in the opinion, the Court granted all the
requests in full except for No. 45, which was
modified; No. 36, which was denied; and No. 38,
which was withdrawn. Additionally, the Court
ruled that, “[i]f there are no documents
responsive to a request, defendant will state
that in writing and under oath. If documents
responsive to a request have already been
produced, defendant will provide the Bates Stamp
number(s).” [Doc. #129 at 3-7].
On October 25, 2013, defendant filed a Motion
for Reconsideration, stating the “grounds for
this motion are that the ruling incorrectly
characterized the issue as a motion to quash,
and appeared to rely upon the failure of Synthes
to respond to a reply brief filed by plaintiff.”
24
[Doc. #130 (emphasis added)]. Rather, defendant
contended, the “issue before the Court, . . .
was plaintiff’s motion for leave to serve
additional written discovery. Synthes never
filed a motion to quash or any other type of
motion regarding the proposed fifth document
production request.”
“The significance of the
mischaracterization of plaintiff’s motion as a
defense motion is evident from the following
statement, which appears seven times in the
Court’s ruling: ‘Defendant did not respond to
plaintiff’s submission and offered no evidence
beyond the arguments set forth above.’ It
appears that the failure of Synthes to respond
to ‘plaintiff’s submission’ was the primary
basis for the Court’s ruling.”
[Doc. #130 at
2].
Defendant did not comply with the Court’s
October 24 Order that, “[i]f there are no
documents responsive to a request, defendant
will state that in writing and under oath. If
documents responsive to a request have already
been produced, defendant will provide the Bates
Stamp number(s).” [Doc. #129].
25
On October 29, the Court granted defendant’s
Motion for Reconsideration, stating “the issues
raised by defendant will be addressed in a
discovery motion that will address plaintiff’s
Fifth Request for Production . . . .” [Doc.
#131].
On November 19, 2013, defendant served a
“Supplemental Objection to Seventh Document
Production Request” a/k/a “plaintiff’s Fifth
Production Request.” [Doc. #147 Ex. E]. The
objection addressed each document production
request as well as providing five general
objections.
DISCUSSION
As a preliminary matter, Court finds that plaintiff’s May 1,
2013, “reply brief” [doc. #112], establishes “good cause” for
service of the Fifth Request for Production dated August 21,
2012.
Plaintiff’s November 27, 2012 Motion for Permission to
Serve the Fifth Request for Production is GRANTED. See Doc.
#130-1]. In an excess of caution, the Court rules on RFPs that
may be resolved by answers to plaintiff’s Requests for
Admissions dated January 14, 2014.
26
Requests for Production Nos. 1-7; 9-14; 17-22; 24-31;
34-35, 40 and 69
Request Nos. 1-7; 9-14; 17-22; 24-31; 34-35; 40 and 69
refer to documents described in the deposition of Mark Michels.
[Doc. #115 Ex. A]. The Court finds the requests are reasonably
calculated to lead to the discovery of admissible evidence. Fed.
R. Civ. P. 26(b)(1). Defendant responds that the documents
responsive to these requests have already been produced and,
“Synthes has no method to definitively identify responsive
documents described by an employee who has not worked at the
company for eight years.” [Doc. #147 Ex. E ¶1 (general objection
No. 1)]. Defendant will produce documents responsive to Request
Nos. 1-7; 9-14; 17-22; 24-31; 34-35; 40 and 69.
If there are no
documents responsive to a request, defendant will state that in
writing and under oath. If documents responsive to a request
have already been produced, defendant will provide the Bates
Stamp number(s). Defendant will produce the documents and/or
written responses within twenty-one days.
Requests for Production Nos.
44-54 and 56-57 and 69
Request Nos. 45-54; 56-57 and 69 relate to documents
referred to in the deposition of James McCracken.
[Doc. #115,
Ex. C]. RFP No. 44 has been withdrawn. [Doc. #147 at 16]. The
27
Court finds the requests are reasonably calculated to lead to
the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1).
Defendant responds that the documents responsive to these
requests have already been produced and, “Synthes has no method
to definitively identify responsive documents described by an
employee who has not worked at the company for eight years.”
[Doc. #147 Ex. E ¶¶1, 2 (general objections No. 1 and 2)].
Defendant will produce documents responsive to Request Nos.
45-54 and 56-57. Request No. 45 is modified, to the extent that
defendant will provide a list of cases where James McCracken was
deposed while employed at Synthes, along with seat of court and
case docket number, and a brief description of the subject
matter of each case.
If there are no documents responsive to a
request, defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Requests for Production Nos. 8, 63 and 64
Defendant objects to RFPs Nos. 63 and 64. Request for
Production No. 8 has been withdrawn. [Doc. #147 at 16].
Synthes
contends that the parties have already briefed the issue of
admissibility of AO documents, and the Court denied the request.
28
[Doc. #147, Ex. E, ¶3; Doc. #69 at 12]. Defendant
misstates/misrepresents the Court’s ruling on the “admissibility
of AO documents.”
RFP No. 40, ruled on by the Court on July
30, 2012, requested production of “a copy of the educational
materials created/published/promulgated by AO pertaining to the
Synthes 2.4 titanium locking reconstruction plate as identified
by Brian Griffiths during his deposition.” [Doc. #169 at 12].
The Court ruled,
Defendant will contact Mr. Griffiths and ask him
whether he has any AO materials pertaining to the
Synthes 2.4 mm titanium locking reconstruction
plate and the date(s) of the materials, and
provide this information to plaintiff during the
meet and confer. Accordingly, RFP No. 40 is
DENIED on this record. Plaintiff may renew her
request at the case management conference. Any
renewal of this RFP should be included on the
Joint Agenda or the request will be deemed
waived.
[Doc. #169 at 12]. Accordingly, defendant’s objection
on the basis that the Court already ruled on the
documents’ admissibility is OVERRULED.
Defendant also objects on the grounds that plaintiff “could
have, but chose not to, pursue discovery directly from the AO.
Under these circumstances, plaintiff had ample opportunity to
obtain the information by discovery from the AO;”
and the
requests are “unduly burdensome and unreasonably cumulative or
duplicative.” [Doc. #143, Ex. E, ¶¶3, 4, 5 (general objections
Nos. 3, 4, 5].
29
Request No. 63: Produce copies of any documents which identify
the relationship between the AO, the TK, the MFTK, the ADI and
Synthes between 1995 to present.
Synthes RESPONSE: See general objection 4. In addition,
documents dated after the sale of the plate at issue are not
relevant to any party’s claim or defense. Rule 26(b)(1).
(emphasis added).
Request No. 64: Produce copies of any documents which identify
the procedures and/or processes to be followed by Synthes to
receive AO and/or TK and/or MFTK approval of the 449 series LRP
as of 1995-1996.
Synthes RESPONSE: See general objections 4 and 5.
The Court finds the requests are reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1). The Court declines to rule on relevance or a question
of law going to admissibility of documents at trial in the
absence of any briefing by defense counsel.
Defendant will
produce documents responsive to Request Nos. 63 and 64. If there
are no documents responsive to a request, defendant will state
that in writing and under oath. If documents responsive to a
request have already been produced, defendant will provide the
Bates Stamp number(s). Defendant will produce the documents
and/or written responses within twenty-one days.
The parties
may seek leave of the Court to file a motion in limine on the
issue of whether “documents dated after the sale of the plate at
issue are not relevant to any party’s claim or defense.”
parties will request leave to file the motion from Judge
30
The
Melancon.
Requests for Production Nos. 1-4; 6-7; 9-12, 14-15;
17--31; 34-35; 37-38; 41; 53-54; and 57
Defendant objects to RFPs Nos. 1-4; 6-7; 9-12; 14-15; 1731; 34-35; 37-38, 41; 53-54 and 57 as “unduly burdensome and
unreasonably cumulative or duplicative” under Fed. R. Civ. P.
26(b)(2)(C)(i), (iii). Synthes further objects that it produced
“the DHF as kept in the usual course of business, and cannot be
required to also organize and label the same documents to
correspond to categories in plaintiff’s individual production
requests,”
citing Fed. R. Civ. P. 34(b)(2)(e)(i). [Doc. #147,
Ex. E, ¶4 (general objection No. 4)].
The Court finds the
requests are reasonably calculated to lead to the discovery of
admissible evidence. Fed. R. Civ. P. 26(b)(1).
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). For example,
defendant may provide the Bates Stamp numbers for the DHF and is
not required to “also organize and label the same documents to
correspond to categories in plaintiff’s individual production
requests.”
Defendant will produce the documents and/or written
responses within twenty-one days.
31
Requests for Production Nos. 13, 44, 48-50, 52, 55,
58, 64, 66 and 67-69
Defendant objects to RFPs Nos. 13, 44, 48-50, 52, 55, 58,
64, 66, and 67-69, stating that “plaintiff had ample opportunity
to request such documents before expert reports were issued and
expert depositions were taken, and chose not to do so.”
[Doc.
#147, Ex. E, ¶5 (general objection No. 5)].
The Court finds the requests are reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Request for Production No. 5
Request No. 5: Produce a copy of any deposition transcript of
Mark Michels in which the subject matter of his testimony was
the 449 series family of locking reconstruction plates as
referred to in Mark Michels’ deposition at pages 73-75.
Synthes RESPONSE: See general objection 1. In addition, the
information requested is not relevant to any party’s claim or
defense, as the witness has not given any deposition testimony
relating to the product at issue in this action. Rule 26(b)(1)
(emphasis added).
32
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
Defendant’s relevance objection to RFP No. 5 is
OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Request for Production No. 9
Request No. 9: Produce documents maintained by Synthes of the
fracture failure rates of the 510k predicate device of this
locking reconstruction plate referred to in Mark Michels’
deposition at page 108. If already produced, please identify the
Bates Stamp number and title of the document(s) that is
responsive to this request.
Synthes RESPONSE: See general objection 1 and 4. In addition,
the information requested is not relevant to any party’s claim
or defense, as it does not relate to the product that is the
subject of this action. Rule 26(b)(1)(emphasis added).
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
Defendant’s relevance objection to RFP No. 9 is
OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
33
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Request for Production No. 39
Request No. 39: Produce all documents, including product
complaint files, which discuss post-operative fracture or
breakage of the stainless steel mandibular reconstruction plate
which was the predicate device of the 449 series LRP 510k.
Synthes RESPONSE: The information requested is not relevant to
any party’s claim or defense, and it does not relate to the
product that is the subject of this action. Rule 26(b)(1).
(emphasis added).
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
Defendant’s relevance objection to RFP No. 39 is
OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Request for Production No. 45
Request No. 45: Produce copies of the prior deposition
transcripts of James McCracken while he was an employee at
34
Synthes as referred to in the deposition of James McCracken at
page 18.
Synthes RESPONSE: See general objection 2. In addition, the
information requested is not relevant to any party’s claim or
defense, as the witness has not given any deposition testimony
relating to the product that is the subject of this action. Rule
26(b)(1) (emphasis added).
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
Defendant’s relevance objection to RFP No. 45 is
OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Request for Production No. 46
Request No. 46: Produce the written report of findings from
outside regulatory compliance reviews of Synthes for the time
periods 1995-2006 as referred to in the deposition of James
McCracken.
Synthes RESPONSE: See general objection 2. In addition, the
information requested is not relevant to any party’s claim or
defense, it does not relate to the product that is subject of
this action. Rule 26(b)(1). (emphasis added).
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
Defendant’s relevance objection to RFP No. 46 is
35
OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Request for Production No. 48
Request No. 48: Produce a copy of the Table of Contents for the
Work Instructions Manual and the Training Guide for the period
1995-2006 as referred to in the deposition of James McCracken at
page 95, lines 18:25 – page 96:1-10.
Synthes RESPONSE: See general objections 2 and 3. In addition,
the information is not relevant to any party’s claim or defense,
as the product at issue was not the subject of corrective
action. Rule 26(b)(1). (emphasis added).
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
Defendant’s relevance objection to RFP No. 48 is
OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
36
Request for Production No. 59
Request No. 59: Produce the design history file for the 449
series non-locking mandibular reconstruction plate as referenced
in the deposition of James Hearn at page 23.
Synthes RESPONSE: The information requested is not relevant to
any party’s claim or defense, and it does not relate to the
product that is the subject of this action. Rule 26(b)(1).
(emphasis added).
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
Defendant’s relevance objection to RFP No. 59 is
OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Request for Production No. 60
Request No. 60: Produce a copy of the deposition transcript of
James Hearn as referenced in pages 49-50 of his deposition
involving the fracture of a Synthes mandibular plate.
Synthes RESPONSE: The information requested is not relevant to
any party’s claim or defense, as the witness has not given any
deposition testimony relating to the product that is the subject
of this action. Rule 26(b)(1). (emphasis added).
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
37
26(b)(1).
Defendant’s relevance objection to RFP No. 60 is
OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
days.
Request for Production No. 61
Request No. 61: Produce the Technique Guide for the 449 series
LRP with Condylar Head (catalogue #449.648)
Synthes RESPONSE: The information requested is not relevant to
any party’s claim or defense, and it does not relate to the
product that is the subject of this action. Rule 26(b)(1).
(emphasis added). In addition, this request is duplicative of
plaintiff’s first document production request (October 4, 2016),
no. 24.
The Court finds the request is reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1).
Defendant’s relevance and duplication objections to
RFP No. 61 are OVERRULED.
If there are no documents responsive to a request,
defendant will state that in writing and under oath. If
documents responsive to a request have already been produced,
defendant will provide the Bates Stamp number(s). Defendant will
produce the documents and/or written responses within twenty-one
38
days.
Request for Production No. 65
Request No. 65: Produce copies of any documents which identify
the job description and complete scope of responsibilities of
Michael Huggins and Richard Bohner and Synthes, Inc.; Synthes
USA, Synthes CMF and Synthes Spine from 1996-2006.
Synthes RESPONSE: The Court ruled that the information requested
is not discoverable. See Doc. #110 at 9-10.
Defendant’s objection to RFP No. 65 is SUSTAINED for the
reasons stated in the Court’s ruling dated April 29, 2013. [Doc.
#110 9-10].
Sixth Request for Production dated October 2, 2013,
and Written Discovery dated October 24, 2013
Plaintiff seeks leave to serve a single production request
dated October 2, 2013, for the Matrix Mandibular Plate DHF.
Plaintiff seeks leave to serve an additional four RFP, five
interrogatories and six requests for admission dated October 24,
2013, “arising out of counsel’s review of the recently produced
Matrix survey results.” [doc. #147 at 51]. Defendant served its
objections on November 22, 2013. [Doc. #147 at Ex. G-3].
Defendant argues that plaintiff has made no showing of good
cause because the “written discovery at issue was served nearly
18 months after the discovery deadline and six and one-half
months after production” of the Matrix survey documents produced
on May 8, 2013. [Doc. #160 at 7-88; #147 at Ex. G-3 (emphasis
39
added)].
“Finally, the information requested is not relevant to
any party’s claim or defense, as the area of plate failure
identified in the document at issue is different than the area
of plate failure in this case.” [Doc. #147 at Ex. G-3].
Specifically, defendant argues that the “document refers to the
LRP breaking at the anterior mandible, but working well in the
ramus region. Plaintiff’s plate did not break in the anterior
mandible, and plaintiff’s theory of the case,
. . . is that the
LRP was not sufficiently thick at the angle [beginning of ramus]
of the human jaw.” [Doc. #160 at 8].
The question is whether plaintiff has established “good
cause” for service of these October 2 and 24, 2013, requests. On
this record, the Court finds that plaintiff has not carried her
burden. Rather, she argues that the requests are
reasonably calculated to lead to the discovery of
admissible evidence in that there is reasonable
probability that the same issue identified in the
Matrix survey documents . . . would also be reflected
in the Design History File for the Matrix plate. When
a medical device manufacturer designs a new device it
considers its experience with other similar devices
(as well as considering other companies’ experiences
with such devices). It would therefore not be
surprising to find reference to LRP breakages/failures
in the requested discovery.
[Doc. #147 at 54]. At oral argument, the Court asked plaintiff
if her earlier discovery requests were sufficiently broad to
pick up documents that may be contained in the Matrix DHF,
including any testing on the LRP or references to LRP breakage.
40
Plaintiff’s counsel stated he asked for any testing involving
the LRP, referring to it as, “incidental discovery.” He stated
that the Matrix DHF may contain five thousand to ten thousand
documents and the file will likely contain LRP plate information
and may also contain information that may go to impeachment.
Defendant states that plaintiff was aware of the existence
of the Matrix DHF since Bryan Griffith’s deposition on February
22, 2011, and served RFPs after the Griffith deposition and
before the close of discovery addressing the survey results and
questionnaire results for the LPR and the Matrix Technique
Guide. See June 2011 RFP No. 4. Defendant argues that plaintiff
could have requested the Matrix DHF before the close of
discovery and did not until October 2013, and that plaintiff has
not demonstrated good cause for requesting this information
until October 2013. Defendant contends that plaintiff’s
requests, particularly the Matrix DHF, will take time to produce
that will delay the progress of the case and impact the trial
date of September 2, 2014. Synthes is also concerned that any
production of discovery will trigger further requests for
depositions, RFP and RFA.
If there were good cause for the
discovery requests, they should have been made in a timely
manner and not six months late.
It is also noted that defendant raises a legal question
regarding admissibility of any evidence post-dating the sale of
41
the plate in April 2003, arguing it should be disallowed under
the subsequent remedial measure doctrine. This legal argument
was briefly raised in the Omnibus Discovery motion, although
parties provided a number of additional citations during and
after oral argument.
The Court need not reach the question of “subsequent
remedial measure” as it finds that plaintiff has not
demonstrated good cause why she did not serve these requests
before the close of discovery, or after receiving the Matrix
survey documents, and has not shown that her prior requests
would not include “incidental” discovery of the very same
documents. Accordingly, plaintiff’s request for leave to file
Requests for Production dated October 2, 2013, and written
discovery dated October 24, 2013 is DENIED.
CONCLUSION
Plaintiff’s Motion to Determine Sufficiency of Synthes’
Responses to Requests for Admissions [Doc. #146] is GRANTED in
part and DENIED in part in accordance with this ruling.
Plaintiff’s Motion to Compel Production [Doc. #147] is
GRANTED in part and DENIED in part in accordance with this
ruling.
Defendant’s responses are due in twenty-one days.
Plaintiff’s requests for sanctions are DENIED.
42
Any extensions of the deadlines set forth in this ruling
must be sought in writing and filed as a motion for extension of
time, for consideration by Judge Melancon.
This is not a recommended ruling.
This is a discovery
ruling and order which is reviewable pursuant to the "clearly
erroneous" statutory standard of review.
28 U.S.C. ' 636
(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.
As such,
it is an order of the Court unless reversed or modified by the
district judge upon motion timely made.
SO ORDERED at Bridgeport this 29th day of January 2014.
____/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
43
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