McAnneny v. Smith & Nephew, Inc.
Filing
64
ORDER denying 58 Motion for Protective Order. Signed by Judge Sarah A. L. Merriam on 12/12/2017. (Tepe, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
EDWARD MCANNENY
:
:
v.
:
:
SMITH & NEPHEW, INC.
:
:
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Civil No. 3:17CV00012(AWT)
December 12, 2017
ORDER
Defendant Smith & Nephew, Inc. (“defendant”) has filed a
motion seeking a protective order, regarding the noticed
deposition of Dr. Andy Weymann. [Doc. #58]. Plaintiff Edward
McAnneny (“plaintiff”) has filed an objection to defendant’s
motion, and defendant has filed a reply. [Docs. #61, #63]. For
the reasons set forth below, the Court DENIES defendant’s Motion
for Protective Order.
I.
Background
Plaintiff noticed the deposition of Dr. Andy Weymann. Dr.
Weymann is alleged by defendant to be a citizen of Switzerland,
see Doc. #58 at 1, and plaintiff does not dispute this
assertion. Plaintiff asserts that he may depose Dr. Weymann by
notice, rather than by subpoena and through the Hague
Convention, because Dr. Weymann is a “managing agent” of
defendant. See Doc. #61 at 9-13. Defendant contends that Dr.
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Weymann is employed by a separate entity, Smith & Nephew
Orthopedics, AG, and is not a managing agent of, or controlled
by, defendant. See Doc. #58 at 2.
II.
Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
2009); see also Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d
Cir. 1992) (“Where the discovery is relevant, the burden is upon
the party seeking ... a protective order to show good cause.”)
(quotation marks and internal citations omitted).
Pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure, “[t]he court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including ... forbidding
the disclosure or discovery[.]” Fed. R. Civ. P. 26(c)(1)(A).
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“Rule 26(c) confers broad discretion on the trial court to
decide when a protective order is appropriate and what degree of
protection is required.” Seattle Times Co. v. Rhinehart, 467
U.S. 20, 36 (1984).
Rule 30(b)(1) provides that a deposition may be taken by a
party upon the provision of “reasonable written notice to every
other party.” Fed. R. Civ. P. 30(b)(1). “Pursuant to Rule
30(b)(1) of the Federal Rules of Civil Procedure, a specific
officer, director, or managing agent of a corporate party may be
compelled to testify pursuant to a notice of deposition.” JSC
Foreign Econ. Ass’n Technostroyexport v. Int’l Dev. & Trade
Servs., Inc., 220 F.R.D. 235, 237 (S.D.N.Y. 2004). If an
individual is not an officer, director, or managing agent of a
corporate party, the deposition may not be compelled by mere
issuance of a notice; rather, the witness must be subpoenaed and
the Hague Convention may apply if the witness is overseas. See,
e.g., United States v. Afram Lines (USA), Ltd., 159 F.R.D. 408,
413 (S.D.N.Y. 1994).
III. Discussion
Defendant moves for a protective order in response to the
Notice of Deposition issued by plaintiff for Dr. Weymann.
Defendant contends that Dr. Weymann is not a “managing agent” of
defendant corporation and thus is not subject to deposition by
mere issuance of a Notice of Deposition. Plaintiff contends that
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Dr. Weymann qualifies as a “managing agent” and that the
equities weigh in favor of permitting the deposition to proceed.
The test for determining whether a person qualifies as a
“managing agent” of a corporate party is a flexible one, and,
like most discovery rules, is designed to account for practical
and equitable considerations. “As in all matters appertaining to
discovery, it is the ends of justice that are to be served.”
Founding Church of Scientology of Washington, D.C., Inc. v.
Webster, 802 F.2d 1448, 1453 (D.C. Cir. 1986).
Plaintiff focuses his argument that Dr. Weymann is a
“managing agent” for these purposes on two pieces of
information. First, plaintiff points out that Dr. Weymann signed
the “Advisory Notice” directed to medical professionals, stating
that “Smith & Nephew has determined to inform customers of a
potential decline in clinical performance in patients implanted
with” the modular femoral head (“MFH”) at issue in this
litigation. Doc. #61-1 at 2. Dr. Weymann signed this Notice as
“Chief Medical Officer, Advance Surgical Devices Division, Smith
& Nephew, Inc.” Doc. #61-1 at 3. The defendant in this matter is
Smith & Nephew, Inc.
Second, plaintiff points to the fact that the registration
of Smith & Nephew Orthopaedics AG –- Dr. Weymann’s employer -with the FDA indicates that the “Owner/Operator” of Smith &
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Nephew Orthopaedics AG is Smith & Nephew, Inc., the defendant in
this matter. See Doc. #61-1 at 11.
“[A] deponent need not have a formal association with the
corporation, and need not be associated with the corporation at
the time of his deposition, to be deemed its managing agent[.]”
Schindler Elevator Corp. v. Otis Elevator Co., No.
06CV5377(CM)(THK), 2007 WL 1771509, at *3 (S.D.N.Y. June 18,
2007). Rather, courts consider a variety of factors in
evaluating whether an individual should be treated as a
“managing agent” so as to permit him to be deposed upon issuance
of a Notice of Deposition. Courts may consider some, or all, of
the following:
1) whether the individual is invested with general
powers allowing him to exercise judgment and discretion
in corporate matters; 2) whether the individual can be
relied upon to give testimony, at his employer’s
request, in response to the demands of the examining
party; 3) whether any person or persons are employed by
the corporate employer in positions of higher authority
than the individual designated in the area regarding
which the information is sought by the examination; 4)
the
general
responsibilities
of
the
individual
respecting the matters involved in the litigation; and
5) whether the individual can be expected to identify
with the interests of the corporation.
Dubai Islamic Bank v. Citibank, N.A., No. 99CV1930(RMB)(THK),
2002 WL 1159699, at *3 (S.D.N.Y. May 31, 2002) (internal
citations and quotation marks omitted). See also Boss Mfg. Co.
v. Hugo Boss AG, No. 97CV8495(SHS)(MHD), 1999 WL 20828, at *3
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(S.D.N.Y. Jan. 13, 1999) (“The generally accepted criteria
require the court to look to three or five factors.”).
Here, the Court finds that the fact that Dr. Weymann signed
the Notice regarding the MFH as “Chief Medical Officer” of
defendant, coupled with his continued employment with an entity
that is, at the very least, related to defendant, is sufficient
to satisfy the first, second and fifth factors set forth above.
Dr. Weymann’s role as “Chief Medical Officer” of Smith & Nephew
at the relevant time satisfies the third and fourth factors.
“The evidence of [the doctor’s] long, intimate relationship and
shared interests with [defendant] is more than sufficient to
preliminarily conclude that [the doctor] is a managing agent of
[defendant].” Schindler Elevator Corp., 2007 WL 1771509, at *8.
Defendant argues that if the Court permits the deposition
of Dr. Weymann to go forward based upon a Notice, the deposition
should take place in Switzerland or London. The Court disagrees.
Dr. Weymann formerly worked in Andover, Massachusetts. See Doc.
#61 at 15. “Smith & Nephew, Inc.[] is a Delaware corporation
with its principal place of business located in Memphis,
Tennessee.” Doc. #12 at 2. Plaintiff is a resident of
Connecticut, and the injuries alleged occurred in Connecticut.
See Doc. #12 at 2, 3-13.
“Corporate defendants are frequently deposed in places
other than the location of the principal place of business,
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especially in the forum, for the convenience of all parties and
in the general interests of judicial economy.” Sugarhill Records
Ltd. v. Motown Record Corp., 105 F.R.D. 166, 171 (S.D.N.Y.
1985). The Court is confident that the parties can reach
agreement regarding an appropriate location for the deposition
of Dr. Weymann in the United States, whether that be in Memphis,
the Boston area, or here in the forum District. Accordingly,
counsel shall meet and confer and attempt to agree upon a
location for the deposition in the United States. If no
agreement is reached by December 19, 2017, the parties shall
file a joint notice on the docket indicating their respective
positions, and the Court will set a location for the deposition.
IV.
Conclusion
For the reasons set forth herein, the Court DENIES
defendant’s Motion for Protective Order. [Doc. #58]. Counsel
shall confer and determine a mutually agreeable date on which to
depose Dr. Weymann, at a location determined by the parties in
the United States, before the February 1, 2018, deadline. See
Doc. #55.
The Court notes that this ruling does not dictate whether
any information obtained in the deposition would be admissible
at trial, either on direct examination or for purposes of
impeachment, and whether any statements made by Dr. Weymann will
bind the defendant.
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This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at New Haven, Connecticut this 12th day of
December, 2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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