Parker v. Mentor Corporation

Filing 219

ORDER denying 153 Motion to Disqualify Expert Witness Catherine Ortuno in case 4:08-md-02004-CDL. Ordered by Judge Clay D. Land on 04/01/2010. (CGC) Associated Cases: 4:08-md-02004-CDL, 3:07-cv-00088-CDL, 3:07-cv-00101-CDL, 3:07-cv-00102-CDL, 3:07-cv-00130-CDL, 4:08-cv-05000-CDL, 4:08-cv-05003-CDL, 4:08-cv-05010-CDL.

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION * MDL Docket No. 2004 4:08-MD-2004 (CDL) * Case Nos. * 3:07-cv-00088 (Parker et al.) 3:07-cv-00101 (Stafford et al.) * 3:07-cv-00102 (Booth et al.) 3:07-cv-00130 (Dover et al.) * 4:08-cv-05000 (Crews et al.) 4:08-cv-05003 (Cree et al.) * 4:08-cv-05010 (Doria et al.)

ORDER Mentor Worldwide LLC ("Mentor") moves to disqualify Plaintiffs' proffered expert Catherine Ortuno, M.D. employee of Mentor-Porges Corporation, Dr. Ortuno is a former a subsidiary of Mentor

Corporation.

Mentor contends that during her employment, Dr. Ortuno

obtained confidential and privileged information concerning Mentor's product that is the subject matter of this lawsuit, ObTape

Transobturator Sling ("ObTape").1 should not be to permitted support to expert use

Mentor argues that Dr. Ortuno confidential and to privileged Mentor's

information interests.

opinions

contrary

For the reasons set forth below, Mentor's Motion to

Disqualify Dr. Ortuno as an expert (Doc. 153) is denied.

ObTape is a synthetic suburethral sling used to treat stress urinary i n c o n t i n e nce.

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BACKGROUND Dr. Ortuno was employed by Porges from 1996 to 2007. From 2001 Dr.

to 2006, Porges was a subsidiary of Mentor ("Mentor-Porges").

Ortuno served as Device Vigilance and Clinical Research Officer and Senior Project Manager for Women's Health Products. she was in charge of the vigilance database for In that role, Mentor-Porges

products, including ObTape, and she was in charge of clinical trials. Dr. Ortuno had access to information regarding clinical trials, research and development, complaints from the field about ObTape, clinical data, and marketing and sales. Part of her job was to

evaluate, investigate, and report adverse events reported to MentorPorges regarding ObTape. In 2005, based on their observations

regarding ObTape, Dr. Ortuno and a co-worker wrote a report to Mentor-Porges documenting their concerns about the safety of ObTape. They recommended that sales of ObTape be stopped. In 2006, the French agency for the safety of health products, Agence Française de Sécurité Sanitaire des Produits de Santé

("AFSSAPS"), met with representatives of Mentor-Porges, including Dr. Ortuno, to discuss a survey AFSSAPS conducted regarding the safety of synthetic suburethral slings such as ObTape. AFSSAPS threatened to Dr. Phoebe Mounts,

take regulatory action with regard to ObTape.

Mentor's outside counsel, was involved in responding to the AFSSAPS inquiry on behalf of Mentor. Dr. Mounts had discussions with Dr. 2

Ortuno about the AFSSAPS inquiry, including compliance with AFSSAPS's requests for quarterly reports regarding ObTape. In 2007, after Porges was acquired by Coloplast, Dr. Ortuno left the company. Coloplast allowed Dr. Ortuno to keep the laptop

computer she had used while employed at Coloplast and Mentor-Porges. The laptop contained a number of documents related to ObTape. Dr.

Ortuno did not produce the documents to Plaintiffs' counsel, but she did generally describe the documents to counsel. Counsel then served letters of request seeking production of those documents under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, July 27, 1970, 23 U.S.T. 2555. Once this Court

received the documents, copies of the documents were produced to Mentor's counsel, who reviewed the documents for privilege, filed a privilege log with the Court, and produced non-privileged documents to Plaintiffs' counsel. In response to Mentor's claim of privilege

as to written communications between Dr. Ortuno and Dr. Mounts, Plaintiffs argued that those communications were merely discussions regarding business advice and were not protected by the attorneyclient privilege. Mounts and The Court ruled that certain emails between Dr. employees, including Dr. Ortuno, were

Mentor-Porges

protected by the attorney-client privilege.

In re Mentor Corp.

ObTape Transobturator Sling Prods. Liab. Litig., 632 F. Supp. 2d 1370, 1381 (M.D. Ga. 2009). Mentor now seeks to prevent Dr. Ortuno 3

from providing any testimony as to those privileged communications and seeks to prevent her from providing any expert opinion testimony regarding any matters she learned about during her employment with Mentor. For the following reasons, the Court finds that Dr. Ortuno shall not be permitted she to had provide with testimony regarding the specific to the

discussions

Mentor's

counsel

relating

communications that the Court has previously found to be privileged. However, she shall be permitted to testify as to other relevant matters that she learned about during her employment with Mentor, and shall be permitted to provide expert opinion testimony that satisfies the requirements of Rule 702 of the Federal Rules of Evidence. DISCUSSION The focus of Mentor's present motion is to prevent Dr. Ortuno from providing expert opinion testimony about matters that she became aware of during her employment with Mentor. Mentor does not object

to the testimony pursuant to Rule 702, but instead seeks to have Dr. Ortuno disqualified under the Court's "inherent power to disqualify an expert witness." Catherine Ortuno (Mentor's Mem. in Supp. of Mot. to Disqualify Serving as Pls.' Expert 6.) Although

from

invitations to exercise "inherent power" have a seductive quality to them, such invitations, if accepted by the Court, have the potential to lead to arbitrary decision-making based on subjective reasons 4

rather than an objective application of the law.

Therefore, before

resorting to "inherent powers," the Court finds it appropriate to start its analysis with the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Under the Federal Rules of Evidence, an expert opinion is generally admissible unless it is not relevant, see Fed. R.

Evid. 402, or the expert does not satisfy the requirements of Rule 702. Here, Mentor does not contend that Dr. Ortuno's opinions Mentor also does not move to disqualify Dr. Ortuno It has produced no evidence that Dr. Ortuno is

are irrelevant. under Rule 702.

unqualified to testify competently regarding the matters she intends to address, that her methodology is not reliable, or that her testimony will not assist the trier of fact. An expert opinion may also be excluded if it is the result of work by a witness who was employed in anticipation of litigation only and the witness is not expected to testify at trial. 26(b)(4)(B). Fed. R. Civ. P.

Under Rule 26(b)(4)(B), Mentor could prevent fact or

opinion discovery from Dr. Ortuno if she was "retained or specially employed by [Mentor] in anticipation of litigation or to prepare for trial" and Dr. Ortuno was "not expected to be called as a witness at trial." Here, Dr. Ortuno was not retained or specially employed by

Mentor in anticipation of litigation or to prepare for trial. Rather, she obtained information 5 from Mentor by virtue of her

employment as Mentor-Porges's Device Vigilance and Clinical Research Officer and Senior Project Manager for Women's Health Products. Thus, Rule 26(b)(4)(B) does not prevent Dr. Ortuno from testifying as an expert in the actions comprising this MDL. Finally, an expert's opinion may be excluded if it is protected by a privilege. Fed. R. Evid. 501. Where, as here, state law

governs the claims, the applicable state law of privilege applies. Id. Although the thrust of Mentor's argument appears to be that

information Dr. Ortuno received while employed by Mentor should be treated as confidential and privileged from disclosure, Mentor points to no privilege under Georgia or other state law that might apply in this case except for the attorney-client privilege. The attorney-

client privilege does not warrant complete exclusion of Dr. Ortuno's expert opinions. communications It only supports the exclusion of any privileged Dr. Ortuno and Mentor's attorneys; the

between

privilege "does not protect disclosure of the underlying facts by those who communicated with the attorney." States, 449 U.S. 383, 395 (1981). Upjohn Co. v. United

Therefore, Dr. Ortuno shall not be

permitted to give any testimony that would divulge attorney-client communications between her and Mentor's attorneys, though she shall not be precluded from disclosing the underlying facts. As to Mentor's attempt to prevent all expert opinion testimony proffered by Dr. Ortuno simply based upon her previous employment 6

relationship with Mentor, Mentor fails to point the Court to any other privilege under Georgia law that would preclude a former employee from testifying against her former employer in a product liability action. The Georgia Court of Appeals analyzed this issue

in General Motors Corp. v. Moseley, 213 Ga. App. 875, 447 S.E.2d 302, (1994), abrogated on other grounds by Webster v. Boyett, 269 Ga. 191, 196-97, 496 S.E.2d 459, 463-64 (1998). In Moseley, a product

liability action regarding GM pickup trucks, the plaintiffs called a former GM safety engineer as a fact witness to testify about the design of the truck's fuel tank. S.E.2d at 307. Moseley, 213 Ga. App. at 879, 447

GM sought to exclude his testimony, arguing that any

knowledge he had about the fuel tank design would be privileged. Id. The court concluded that the engineer's testimony was not privileged because Georgia does not recognize privilege for communications between a principal and agent and because the communications were not protected under the attorney-client privilege. S.E.2d at 308. Id. at 879-80, 447

The court noted that the engineer had worked with a

defense team in other cases involving the fuel tank but concluded that the defense team's use of the engineer's expertise "did not bestow any privilege upon [his] experience and observations." 447 S.E.2d at 308. Id.,

Since Mentor has pointed to no state law

privilege that generally prohibits the disclosure of information that an employee learns during the employment relationship, the Court 7

finds that Rule 501 does not require the exclusion of Dr. Ortuno's testimony regarding matters beyond her communication with Mentor's attorneys. Cf. Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte

GmbH, 141 F.3d 1434, 1444-45 (11th Cir. 1998) (finding no blanket rule against witness's "side-switching" and noting that a party is generally only prohibited from contacting his adversary's former expert in violation of Rule 26, the attorney-client privilege, or work product privilege). Perhaps because the Federal Rules permit Dr. Ortuno to provide expert testimony, Mentor resorts to a line of cases, mostly

unreported district court cases, in which federal courts excluded expert testimony based on their "inherent power to disqualify an expert from participating in litigation." Eastman Kodak Co. v. AgfaGevaert N.V., No. 02-CV-6564, 2003 WL 23101783, at *1 (W.D.N.Y. Dec. 4, 2003); accord, e.g., Space Sys./Loral v. Martin Marietta Corp., Civ. No. 95-20122 SW, 1995 WL 686369, at *2 (N.D. Cal. Nov. 15, 1995). The Court does not find this line of cases to be persuasive However, even if the

under the circumstances of the present case.

Court found the rationale of these cases to be persuasive, the Court finds that even under that rationale, Dr. Ortuno's non-privileged expert testimony should not be excluded. Under this line of cases,

a former employee may be disqualified as an expert against her former employer if: (1) it was objectively reasonable for the employer to 8

conclude that a confidential relationship existed between it and the former employee, and (2) the employer disclosed confidential or privileged information to the former employee that is relevant to the current litigation. E.g., CarboMedics, Inc. v. ATS Med., Inc., Civil No. 06-cv-4601 (PJS/JJG), 2008 WL 5500760, at *3 (D. Minn. Apr. 16, 2008); accord Alien Tech. Corp. v. Intermec, Inc., No. 3:06-CV-51, 2007 WL 4261972, at *1 (D.N.D. Nov. 30, 2007); Brett ex rel. Brett v. Hillerich & Bradsby Co., No. CIV-99-981-C, 2001 WL 36162670, at *1 (W.D. Okla. Oct. 5, 2001). The rationale for this "inherent judicial powers" rule has very little to do with the ability of the Court to manage its docket or operate in an efficient and just manner. Rather, two possible

rationales appear to be offered in support of the line of cases upon which Mentor relies. amorphous employment First, these courts appear to establish some privilege even based on the nature of nor the the

"judge-made" relationship

though

neither

Congress,

drafters of the Federal Rules, nor a state legislature, nor a state's common law recognizes such a privilege. rationale dubious and unpersuasive. The Court finds this

A second, and perhaps more

persuasive, rationale is that the courts in this line of cases are simply using their "inherent powers" to enforce a confidentiality agreement between the employer and former employee. To enforce the

employer-employee agreement, the court uses its "inherent" power to 9

prevent

the

disclosure

of

confidential

information,

and

thus

disqualifies the employee from testifying. The Court finds that this rationale does not support the disqualification of the expert

testimony under the circumstances in this case. Although the Court declines to follow the "inherent powers" argument suggested by Mentor, the Court finds that even if it did accept that such a legal principle existed in theory, the cases upon which that principle is based are distinguishable from the present case. First, the courts that apply this rule generally focus upon

the existence of a confidentiality agreement between the employer and employee.2 E.g., Space Sys./Loral, 1995 WL 686369, at *4 (concluding

that expert in patent infringement action could not disclose to his former employer's adversary information he obtained while bound by confidentiality agreement). In the present case, Dr. Ortuno never

had a confidentiality agreement with Mentor or Mentor-Porges. Therefore, the Court is not called upon to use its "inherent" or "equitable" powers to prevent the breach of such an agreement. Second, these courts justify their disqualification of a former employee's testimony based upon a concern that the former employee should be prevented from potentially disclosing confidential

information to an adversary of the employer who could gain an unfair
2

In the vast majority (if not all) of the cases Mentor cited in support of its "inherent authority" argument, the former employee was bound by a confidentiality agreement.

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competitive advantage.

CarboMedics, Inc., 2008 WL 5500760, at *3

(excluding company's former president from serving as expert for adversary in breach of contract action where former president had direct knowledge of company's position in lawsuit and former

president had signed confidentiality agreement); Alien Tech. Corp., 2007 WL 4261972, at *2 (disqualifying former employee from testifying in patent infringement with employer action and because he he had confidentiality about

agreement

because

had

information

employer's legal planning that might inadvertently be disclosed to adversary); see also Brett, 2001 WL 36162670, at *2 (disqualifying former employee as expert based on unfair competitive advantage rationale). argument that In the present case, Mentor cannot make a credible Dr. Ortuno's testimony will provide some unfair

advantage to a competitor.

ObTape has been removed from the market,

and it is doubtful that testimony by Dr. Ortuno regarding ObTape would disclose any confidential information that would place Mentor at a present competitive disadvantage. Moreover, Mentor appears to

concede that Dr. Ortuno may serve as a fact witness because she has unique personal knowledge about the matters at issue in the actions comprising this MDL, including the complaints Mentor received from the field regarding ObTape. Mentor does not argue (or point to any

authority) that Dr. Ortuno may not disclose confidential information if she serves as a fact witness. Interestingly, Mentor simply seeks 11

to prevent her from giving a relevant, qualified, and reliable expert opinion based upon those facts. The Court finds no justification for

excluding such testimony under the federal rules or the Court's inherent powers. CONCLUSION For the reasons discussed above, Mentor's Motion to Disqualify Dr. Ortuno (Doc. 153) is denied. Dr. Ortuno shall be permitted to

serve as an expert witness for Plaintiffs; however, she shall not offer testimony that would divulge privileged, attorney-client

communications. IT IS SO ORDERED, this 1st day of April, 2010.

S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE

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